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THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


IX 
Science  of  Legal  Method 


THE  MODERN    LEGAL  PHILOSOPHY 
SERIES 


Edited  by  a  Committee  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


I.  THE  SCIENCE  OF  LAW.  By  KARL  GAREIS  of  the  Uni- 
versity of  Munich.  Translated  by  Albert  Kocourek  of  North- 
western University. 

II.  THE    WORLD'S    LEGAL     PHILOSOPHIES.        By      FRITZ 

BEROLZHEIMER    of     Berlin.       Translated   by   Mrs.    Rachel 
Szold  Jastrow  of  Madison,  Wis. 

III.  COMPARATIVE  LEGAL    PHILOSOPHY,   applied  to  Legal 

Institutions.      By  LUIGI    MlRAGLIA    of    the    University    of 
Naples.    Translated  by  John  Lisle  of  the  Philadelphia  Bar. 

IV.  GENERAL   THEORY  OF   LAW.      By    N.    M.    KORKUNOV 

of    the    University    of     Petrograd.      Translated     by    W.   G. 
Hastings,  of  the  University  of  Nebraska. 

V.  LAW  AS  A  MEANS  TO  AN  END.  By  RUDOLF  VON 
IHERING  of  the  University  of  Gottingen.  Translated  by 
Isaac  Husik  of  the  University  of  Pennsylvania. 

VI.  THE  POSITIVE  PHILOSOPHY  OF  LAW.  By  I.  VANNI  of 
the  University  of  Bologna.  Translated  by  John  Lisle  of  the 
Philadelphia  Bar. 

VII.  MODERN  FRENCH  LEGAL  PHILOSOPHY.  By  A. 
FOUILLEE,  J.  CHARMONT.  L.  DUGUIT,  and  R.  DEMOGUE, 
of  the  Universities  of  Paris,  Montpellier,  Bordeaux,  and 
Lille.  Translated  by  Joseph  P.  Chamberlain  of  the  New  York 
Bar,  and  Mrs.  Franklin  W.  Scott  of  Urbana,  111. 

VIII.  THE  THEORY  OF  JUSTICE.  By  RUDOLF  STAMMLER 
of  the  University  of  Halle.  Translated  by  Isaac  Husik  of  the 
University  of  Pennsylvania. 

IX.  SCIENCE  OF  LEGAL  METHOD:  Select  Essays.  By  Various 
Authors. 

X.  THE  FORMAL  BASES  OF  LAW.  By  G.  DEL  yECCHIO 
of  the  University  of  Bologna.  Translated  by  John  Lisle  of  the 
Philadelphia  Bar. 

XI.  THE  SCIENTIFIC  BASIS  OF  LEGAL  JUSTICE:  Select 
Essays.  By  Various  Authors. 

XII.  THE  PHILOSOPHY  OF  LAW.  By  JOSEF  KOHLER  of 
the  University  of  Berlin.  Translated  by  Adalbert  Albrecht. 

XIII.  PHILOSOPHY  OF  THE  DEVELOPMENT  OF  LAW.  By 
P.  DE  TOURTOULON  of  the  University  of  Lausanne. 
Translated  by  Robert  L.  Henry,  Jr.,  of  Cambridge,  Mass. 


Modern  Legal  Philosophy  Series:  Vol.  IX 


SCIENCE  OF  LEGAL^ 
METHOD^ 

Select  Essays  by  Various  Authors 


TRANSLATIONS  BY 

ERNEST  BRUNCKEN 

Washington,  D.  C. 

AND 

LAYTON  B.  REGISTER 

of  the   University   of   Pennsylvania  Law  School 


WITH   INTRODUCTIONS  BY 

HENRY  N.  SHELDON 
Former  Justice  of  the  Supreme  Judicial  Court  of  Massachusetts 

AND  BY 

JOHN  W.  SALMOND 

Solicitor-General  of  New  Zealand 


1917 


COPYRIGHT,  1917 
BY  THE  BOSTON  BOOK  COMPANY 


The  Riverdale  Press,  Rrookline,  Mass.,  U.  S.  A. 


EDITORIAL  COMMITTEE  OF  THE  ASSOCIATION 
OF  AMERICAN  LAW  SCHOOLS 


JOSEPH  H.  DRAKE,  Professor  of  Law,  University  of  Michigan. 
ALBERT  KOCOUREK,  Professor  of  Law,  Northwestern  University. 
ERNEST  G.  LORENZEN,  Professor  of  Law,  University  of  Minnesota. 
FLOYD  R.  MECHEM,  Professor  of  Law,  University  of  Chicago. 
ROSCOE  POUND,  Professor  of  Law,  Harvard  University. 
ARTHUR  W.  SPENCER,  Brookline,  Mass. 

JOHN  H.  WlGMORE,   Chairman,   Professor  of  Law,  Northwestern 
University. 


LIST  OF  TRANSLATORS 

ADALBERT  ALBRECHT  (former  Associate  Editor,  Journal  of  Crim- 
inal Law  and  Criminology) . 
ERNEST  BRUNCKEN,  Washington,  D.  C. 
JOSEPH  P.  CHAMBERLAIN,  Columbia  University. 
WILLIAM  G.  HASTINGS,  Professor  of  Law,  University  of  Nebraska. 
ROBERT  L.  HENRY,  JR.,  former  Professor  of  Law,  University  of  Iowa. 
ISAAC  HUSIK,  University  of  Pennsylvania. 
MRS.  RACHAEL  SZOLD  JASTROW,  Madison,  Wis. 
ALBERT  KOCOUREK  (of  the  Editorial  Committee). 
JOHN  LISLE,*  Philadelphia,  Pa.  (of  the  Philadelphia  Bar). 
LAYTON  B.  REGISTER,  University  of  Pennsylvania  Law  School. 
MRS.  FRANKLIN  W.  SCOTT,  University  of  Illinois. 

*Deceased  June  20th,  1915. 


.1 


GENERAL    INTRODUCTION  TO 
THE  SERIES 

BY  THE  EDITORIAL  COMMITTEE 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosophers,  States  will  never  succeed 
in  remedying  their  shortcomings."  And  if  he  was 
loath  to  give  forth  this  view,  because,  as  he  admitted, 
it  might  "sink  him  beneath  the  waters  of  laughter  and 
ridicule,"  so  to-day  among  us  it  would  doubtless  resound 
in  folly  if  we  sought  to  apply  it  again  in  our  own  field 
of  State  life,  and  to  assert  that  philosophers  must  be- 
come lawyers  or  lawyers  philosophers,  if  our  law  is 
ever  to  be  advanced  into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to-day, 
of  some  such  transformation.  Of  course,  history  shows 
that  there  always  have  been  cycles  of  legal  progress, 
and  that  they  have  often  been  heralded  and  guided  by 
philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  now  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people 
apt  thereto.  But,  without  delaying  over  the  grounds 
for  such  speculations,  let  us  recall  that  as  shrewd  and 
good-natured  an  observer  as  DeTocqueville  saw  this 
in  us.  He  admits  that  "in  most  of  the  operations  of 
the  mind,  each  American  appeals  to  the  individual  exer- 
cise of  his  own  understanding  alone;  therefore  in  no 
country  in  the  civilized  world  is  less  attention  paid  to 
philosophy  than  in  the  United  States."  But,  he  adds, 
"the  Americans  are  much  more  addicted  to  the  use  of 
general  ideas  than  the  English,  and  entertain  a  much 


vi  GENERAL  INTRODUCTION 

greater  relish  for  them."  And  since  philosophy  is, 
after  all,  only  the  science  of  general  ideas  —  analyzing, 
restating,  and  reconstructing  concrete  experience  — 
we  may  well  trust  that  (if  ever  we  do  go  at  it  with  a  will) 
we  shall  discover  in  ourselves  a  taste  and  high  capacity 
for  it,  and  shall  direct  our  powers  as  fruitfully  upon  law 
as  we  have  done  upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic 
learning  has  been  insular.  The  value  of  the  study  of 
comparative  law  has  only  in  recent  years  come  to  be 
recognized  by  us.  Our  juristic  methods  are  still  primi- 
tive, in  that  we  seek  to  know  only  by  our  own  experi- 
ence, and  pay  no  heed  to  the  experience  of  others. 
Our  historic  bond  with  English  law  alone,  and  our  con- 
sequent lack  of  recognition  of  the  universal  character 
of  law  as  a  generic  institution,  have  prevented  any  wide 
contact  with  foreign  literatures.  While  heedless  of 
external  help  in  the  practical  matter  of  legislation,  we 
have  been  oblivious  to  the  abstract  nature  of  law. 
Philosophy  of  law  has  been  to  us  almost  a  meaningless 
and  alien  phrase.  "All  philosophers  are  reducible  in 
the  end  to  two  classes  only:  utilitarians  and  f utilitari- 
ans," is  the  cynical  epigram  of  a  great  wit  of  modern 
fiction.1  And  no  doubt  the  philistines  of  our  profession 
would  echo  this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(whether  conscious  of  the  fact  or  not)  from  some  drift 
of  philosophic  thought.  "In  each  epoch  of  time,"  says 
M.  Leroy,  in  a  brilliant  book  of  recent  years,  "there  is 
current  a  certain  type  of  philosophic  doctrine  —  a  phil- 
osophy deep-seated  in  each  one  of  us,  and  observable 
clearly  and  consciously  in  the  utterances  of  the  day  — 
alike  in  novels,  newspapers,  and  speeches,  and  equally 

1  M.  Dumaresq,  in  Mr.  Paterson's  "The  Old  Dance  Master." 


GENERAL  INTRODUCTION  vii 

in  town  and  country,  workshop  and  counting-house." 
Without  some  fundamental  basis  of  action,  or  theory 
of  ends,  all  legislation  and  judicial  interpretation  are 
reduced  to  an  anarchy  of  uncertainty.  It  is  like  mathe- 
matics without  fundamental  definitions  and  axioms. 
Amidst  such  conditions,  no  legal  demonstration  can  be 
fixed,  even  for  a  moment.  Social  institutions,  instead 
of  being  governed  by  the  guidance  of  an  intelligent  free 
will,  are  thrown  back  to  the  blind  determinism  of  the 
forces  manifested  in  the  natural  sciences.  Even  the 
phenomenon  of  experimental  legislation,  which  is  pecu- 
liar to  Anglo-American  countries,  cannot  successfully 
ignore  the  necessity  of  having  social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910:  — 

The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy.  We  are  on  the  threshold  of  a  long  period  of  construc- 
tive readjustment  and  restatement  of  our  law  in  almost  every  depart- 
ment. We  come  to  the  task,  as  a  profession,  almost  wholly  untrained 
in  the  technic  of  legal  analysis  and  legal  science  in  general.  Neither 
we,  nor  any  community,  could  expect  anything  but  crude  results 
without  thorough  preparation.  Many  teachers,  and  scores  of 
students  and  practitioners,  must  first  have  become  thoroughly 
familiar  with  the  world's  methods  of  juristic  thought.  As  a  first 
preparation  for  the  coming  years  of  that  kind  of  activity,  it  is  the 
part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modern  thinkers  abroad  —  to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state 
of  learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  (Kuhn  v.  Fair- 


viii  GENERAL  INTRODUCTION 

mont  Coal  Co.)  turned  upon  the  respective  conceptions  of  "law" 
in  the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  supplied  direct 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting:  — 

That  a  committee  of  five  be  appointed  by  the  president,  to  arrange 
for  the  translation  and  publication  of  a  series  of  continental  master- 
works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where. The  present  series  is  the  result  of  these  labors. 

In  the  selection  of  this  series,  the  committee's  pur- 
pose has  been,  not  so  much  to  cover  the  whole  field  of 
modern  philosophy  of  law,  as  to  exhibit  faithfully  and 
fairly  all  the  modern  viewpoints  of  any  present  impor- 
tance. The  older  foundation-works  of  two  generations 
ago  are,  with  some  exceptions,  already  accessible  in 
English  translation.  But  they  have  been  long  sup- 
planted by  the  products  of  newer  schools  of  thought 
which  are  offered  in  this  series  in  their  latest  and  most 
representative  form.  It  is  believed  that  the  complete 
series  will  represent  in  compact  form  a  collection  of 
materials  whose  equal  cannot  be  found  at  this  time  in 
any  single  foreign  literature. 

The  committee  has  not  sought  to  offer  the  final 
solution  of  any  philosophical  or  juristic  problems;  nor 
to  follow  any  preference  for  any  particular  theory  or 
school  of  thought.  Its  chief  purpose  has  been  to  present 
to  English  readers  the  most  representative  views  of  the 
most  modern  writers  in  jurisprudence  and  philosophy 
of  law.  The  series  shows  a  wide  geographical  represen- 
tation: but  the  selection  has  not  been  centered  on  the 


GENERAL  INTRODUCTION  ix 

notion  of  giving  equal  recognition  to  all  countries. 
Primarily,  the  desire  has  been  to  represent  the  various 
schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at 
the  same  time.  Germany,  for  example,  is  represented 
in  modern  thought  by  a  preponderant  metaphysical 
influence.  Italy  is  primarily  positivist,  with  subordinate 
German  and  English  influences.  France  in  its  modern 
standpoint  is  largely  sociological,  while  making  an  effort 
to  assimilate  English  ideas  and  customs  in  its  theories 
of  legislation  and  the  administration  of  justice.  Spain, 
Austria,  Switzerland,  Hungary,  are  represented  in  the 
Introductions  and  the  shorter  essays;  but  no  country 
other  than  Germany,  Italy,  and  France  is  typical  of  any 
important  theory  requiring  additions  to  the  scope  of 
the  series. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past 
to  present,  was  regarded  by  the  committee  as  unneces- 
sary. The  volumes  of  Dr.  Berolzheimer  and  Professor 
Miraglia  amply  serve  this  purpose;  and  the  introductory 
chapter  of  the  latter  volume  provides  a  short  summary 
of  the  history  of  general  philosophy,  rapidly  placing 
the  reader  in  touch  with  the  various  schools  and  their 
standpoints.  The  series  has  been  so  arranged  (in  the 
numbered  list  fronting  the  title  page)  as  to  indicate  that 
order  of  perusal  which  will  be  most  suitable  for  those  who 
desire  to  master  the  field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledg- 
ing the  important  part  rendered  in  the  consummation 
of  this  project,  by  the  publisher,  the  authors,  and  the 
translators.  Without  them  this  series  manifestly  would 
have  been  impossible. 


x  GENERAL  INTRODUCTION 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness 
to  Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his 
ample  provision  of  materials  for  legal  science  in  the 
Gary  Library  of  Continental  Law  (in  Northwestern 
University).  In  the  researches  of  preparation  for  this 
Series,  those  materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  hav$  shown 
a  friendly  interest  in  promoting  our  aims.  The  com- 
mittee would  be  assuming  too  much  to  thank  these 
learned  writers  on  its  own  behalf,  since  the  debt  is  one 
that  we  all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar 
way  be  attributable  to  the  scholarly  labors  of  the  several 
translators. 

The  committee  finds  special  satisfaction  in  having 
been  able  to  assemble  in  a  common  purpose  such  an  array 
of  talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  to  this  unified  effort  has  been  amply  recom- 
pensed if  this  series  will  measurably  help  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice 


CONTENTS 


Page 

1.  General  Introduction  to  the  Series  v 

2.  Editorial  Preface    xxi 

3.  Introduction  by  Henry  N.  Sheldon Ixix 

4.  Introduction  by  John  W.  Salmond Ixxv 

5.  List  of  Abbreviations Ixxxvii 


PART  I 

THF  PROBLEM  OF  THE  JUDGE 

CHAPTER  I 

JUDICIAL  FREEDOM  OF  DECISION:  ITS  NECESSITY  AND 
METHOD.     By  Francois  Geny 

I.    ITS  BASIS 

§    1.     Need  for  and  Nature  of  Free  Legal  Decision 2 

§    2.     General  Scope  of  Free  Decision 4 

§    3.     Objective  Factors  in  Scientific  Investigation;    Public 

Opinion     6 

§    4.     Systematic   Logic  and  the  Technical  Side  of  Our 

Science;  Concepts  and  Abstract  Notions 8 

§    5.     The  "Nature  of  Things";    The   Idea  of  Law  as  a 

Means  to  an  End    11 

II.    ITS  PRACTICAL  APPLICATION 

§    6.  The  Method  of  Free  Decision   15 

§    7.  Liberal  Use  of  this  Method  18 

§    8.  The  Autonomy  of  Individual  Will  Explained 21 

§    9.  Extent  of  the  Principle  of  the  Autonomy  of  the  Will  25 

§  10.  Same  Subject  continued 28 

§  11.  The  Principle  of  the  Equilibrium  of  Interests 35 

§  12.  Same  Subject  continued 39 

§  13.  The  Principle  of  Superior  Interest  of  the  Community  43 

§  14.  Other  Applications  of  the  Method  of  Free  Decision  45 


xii  CONTENTS 


JUDICIAL  FREEDOM  OF  DECISION:   ITS  PRINCIPLES  AND 
OBJECTS.     By  Eugen  Ehrlich 

I.    GOVERNMENT  LAW  AS  CONSTRASTED  WITH  PEOPLE'S 
LAW 

Page 

§    1.  Relations  of  Legislator  and  Judge 48 

§    2.  Increased  Importance  of  Statutory  Law 49 

§    3.  Rules  of  Decision  Insufficient  to  Regulate  Actual  Life  52 

§    4.  Importance  of  Unwritten  Law 53 

§    5.  Lawyers'  Law 54 

§    6.  Development  of  International  Law 55 

§    7.  Growth  of  Law  without  Legislation 56 

§    8.  Legislation  not  a  Primitive  Form  of  Law 57 

§   9.  The  Courts  and  the  Statutes    '. 58 

§  10.  Modern  Codes 59 

§  11.  Inadequacy  of  Mere  Statutory  Law 60 

II.  STATUTORY  LAW  AND  ITS  OBSTRUCTION  TO  FREE  JUDICIAL 

DECISION 

§  12.     Advantages  and  Disadvantages  of  Codification 61 

§  13.     Legal  Technicalism 63 

§  14.     Further  Objections  to  the  Technical  Method 65 

§  15.     Tendencies  Opposed  to  Technicalism    66 

§  16.     Approximation  to  Free  Decision    69 

III.  CHARACTERISTICS  OF  THE  PRINCIPLE  OF  FREE  JUDICIAL 

DECISION 

$  17.     Free  Decision  Not  Arbitrary 71 

§  18.     The  Basis  of  Free  Decision 72 

§  19.     Legal  Growth  as  Affected  by  the  Lawyers 72 

§  20.     The  Personality  of  the  Judge 74 

IV.  THE  TASKS  AWAITING  FREEDOM  OF  JUDICIAL  DECISION 

§  21.  The  Work  of  Legal  Science 76 

§  22.  The  Practical  Operation  of  the  Law   77 

§  23.  Legal  Regulation  and  Actual  Life   80 

§  24.     Legal  Science  and  the  Courts 82 

§  25.  The  Law  of  Evidence 83 

§  26.  Conclusion .  .  84 


CONTENTS  xiii 

CHAPTER  III 

DlALECTICISM   AND  TECHNICALITY:     THE   NEED  OF 
SOCIOLOGICAL  METHOD.     By  Johann  Georg  Gmelin 

I.    ON  THE  ART  OF  ADMINISTERING  JUSTICE 

Page 

1.  Codes  and  Judicial  Functions 86 

2.  Statutes  and  Justice 89 

3.  The  Demand  for  Reform 90 

4.  The  Writings  of  Ernst  Fuchs    92 

5.  Criticism  of  Supreme  Court  Decisions    93 

6.  More  Decisions  Criticized 96 

7.  A  False  Method    97 

S.     The  Better  Method    98 

9.     Conclusion.  .  100 


II.    ON  THE  SOCIOLOGICAL  METHOD  IN  THE  ADMINISTRATION 
OF  JUSTICE 

§  10.  Law  and  Sociology 101 

§  11.  Mere  Logical  Deduction  not  a  Sufficient  Method.  .  .  .  104 

§  12.  The  Sociological  Method 107 

§  13.  Criticism  of  Supreme  Court  Decisions    109 

§  14.  Analysis  of  Criticisms  made  by  Fuchs    Ill 

§  15.  Further  Criticisms  by  Fuchs 114 

§  16.  A  Difficult  Case 115 

§  17.  Further  Criticisms  Analyzed 116 

§  18.  The  Subject  continued 118 

§  19.  The  Supreme  Court  sometimes  Sociologically  Correct  121 

§  20.  Individual  Errors  or  False  Method   122 

§  21.  The  Prevailing  Method  not  Working  Properly 124 

§  22.  The  Sense  of  Justice 125 

§  23.  The  Theoretical  Conception  of  Judgment    128 

§  24.  The  Balancing  of  Interests : 130 

§  25.  The  Need  of  a  Change  in  Attitude    131 

§  26.  Objections  to  the  New  Method    132 

§  27.  Some  Objections  Refuted    134 

§  28.  Some  Opinions  Regarding  the  New  Method 136 

§  29.  Views  of  Duringer 139 

§  30.  Views  of  other  Law  Writers    141 

§  31.  The  Subject  continued 142 

§  32.  Conclusion 143 


xiv  CONTENTS 

CHAPTER  IV 
EQUITY  AND  LAW:  JUDICIAL  FREEDOM  OF  DECISION 

By  Geza  Kiss 

Page 

§  1.  The  Function  of  the  Courts  and  the  Growth  of  Law  146 

§  2.  History  of  Legal  Hermeneutics:  Roman  Law 149 

§  3.  "Aequitas"  and  "Logical  Exposition"   152 

§  4.  History  continued:  Later  Roman  Law 154 

§  5.  The  Modern  Problem 157 

§  6.  The  Problem  of  Unprovided  Cases    158 

§  7.  Free  Legal  Decision    '     160 

§  8.  The  True  Method 161 

§  9.  The  Reasons  for  Gaps  in  the  Statutes 162 

CHAPTER  V 

THE  PERILS  OF  EMOTIONALISM:  SENTIMENTAL  ADMINIS- 
TRATION OF  JUSTICE — ITS  RELATION  TO  JUDICIAL  FREE- 
DOM OF  DECISION.     By  Fritz  Berolzheimer 

§    1.     "Freedom  of  Judicial  Decision"  in  Substance  not  a 

New  Idea  166 

§  2.  "Justice  based  on  the  Adjustment  of  Interests"  an 

Untenable  Standard 169 

§  3.  "Free  Application  of  Law"  Equivalent  to  Decision 

against  the  Established  Rule 172 

§  4.  "Freedom  of  Judicial  Decision"  to  be  applied  only  in 

Accordance  with  Legal  Principles 174 

§  5.  The  Principles  of  "Freedom  of  Judicial  Decision" 

grow  out  of  Historical  and  Economic  Conditions. .  178 
§  6.  The  Basis  of  "Freedom  of  Decision"  is  the  Idea  of 

Liberty,  i.e.,  The  Elimination  from  the  Law  of  All 

Oppressive  Action 182 

CHAPTER  VI 

JUDICIAL  INTERPRETATION  OF  ENACTED  LAW 
By  Josef  Kohler 

§    1.     The  Reasons  Why  Interpretation  is  Needed 187 

§    2.     Legal  Interpretation  Distinguished  from  Interpreta- 
tion in  General 189 

§    3.     How  the  True  Meaning  is  Discovered 191 

§    4.     Interpretation  Changing  with  Social  Circumstances  192 

§    5.     An  Example  of  Effective  Interpretation 194 


CONTENTS  xv 

Page 

§    6.     The  Intention  of  the  Legislator 195 

§    7.     Broad  and  Narrow  Interpretation  198 

§    8.     Interpretation  of  Unwritten  Law 200 

CHAPTER  VII 

COURTS  AND  LEGISLATION".    By  Roscoe  Pound 202 

CHAPTER  VIII 

THE  OPERATION  OF  THE  JUDICIAL  FUNCTION  IN  ENGLISH  LAW 
By  Heinrich  B.  Gerland 

§    1.     Recent  Proposals  of  Law  Reform 229 

§    2.     Free  Legal  Decision    232 

§    3.     English  Courts  and  Legal  Development 233 

§    4.     Power  of  Adopting  Rules  of  Procedure 235 

§    5.     The  System  of  Following  Precedent 237 

§    6.     Practical  Effect  of  the  System:  Advantages 239 

§    7.     Practical  Effects:   Drawbacks    241 

§    8.     Practical  Effects:    Further  Drawbacks 243 

§    9.     Unmanageable  State  of  English  Law 245 

§  10.     Proposed  Codification    ,  246 

§  11.     Free  Legal  Decision  not  Practised 248 

CHAPTER  IX 

CODIFIED  LAW  AND  CASE-LAW:  THEIR  PART  IN  SHAPING 
THE  POLICIES  OF  JUSTICE.     By  £douard  Lambert 

5    1.     Theory  that  Law  is  made  Stationary  by  Codification: 

Its  Effect    251 

§    2.     Effect  of  the  Judicial  Decision  the  same  in  the  Anglo- 
American  System    257 

§    3.     Fallacy  that  Customary  Law  is  without  Conscious 

Policy    260 

§    4.     Origin  of  the  Fallacy    261 

§   5.     Customary  Law  in  the  Anglo-American  System 263 

§    6.     Custom  and  Judicial  Decisions  in  Anglo-American 

Law 265 

§    7.     The  True  Function  of  the  Judge 268 

§    8.     The  English  Doctrine  is  a  Fiction 270 

§   9.     Fallacy  of  the  English  Doctrine 278 

§  10.     Courts  and  Legislature  as  Organs  of  Legal  Production  279 

§11.     Conclusion 284 


xvi  CONTENTS 

CHAPTER  X 
METHODS  OF  JURIDICAL  THINKING.    By  KarlGeorg  Wurzel 

INTRODUCTION* 

Page 

§    1.     Jurisprudence  and  other  Social  Sciences 289 

I.    NATURE  AND  QUALITIES  OF  JURIDICAL  THINKING 

§    2.     Popular  Notions    295 

§    3.     Postulates  of  Jurisprudence 297 

§    4.     Dispassionateness  of  the  Judge 298 

§    5.     Certainty  of  the  Law   300 

II.  THE  PREVALENT  THEORY  OF  INTERPRETATION:  CRITICAL 

EXAMINATION  OF  ITS  PRINCIPAL  TENETS 

§    6.     General  Survey;   The  Principal  Defect    305 

§    7.     The  Results  of  Interpretation  Classified  in  Accord- 
ance with  the  Prevalent  Theory .  310 

§    8.     Criticism  of  this  Classification   312 

§    9.     The  Methods  of  Interpretation  Classified  in  Accord- 
ance with  the  Prevalent  Theory 316 

§  10.     Reason  ("Ratio")  of  the  Law 319 

§  11.     Need  for  a  Theory  of  Juridical  Thinking 325 

III.  SCOPE  OF  JURIDICAL  THINKING,   ESPECIALLY  ITS  RELA- 

TION TO  INTERPRETATION 

§  12.     Its  Limitation  in  Principle    328 

§  13.     Some  Positive  Observations  Regarding  the  Scope  of 

Juridical  Thinking 334 

§  14.     A  Logical  Digression    336 

§  15.     Application  of  the  Above  Principles  to  Legal  Con- 
cepts; Projection 342 

§  16.     The  Legislator '. •  349 

IV.    THE  PRINCIPAL  METHODS  OF  INTERPRETATION 

§  17.     General  Survey   357 

§  18.     The  Tendency  towards  Unity    359 

§  19.     The  Conservative  Tendency 363 


CONTENTS  xvii 

V.    THE  SUBJECT- MATTERS  OF  PROJECTION 

•Page 

§  20.     General  Survey 369 

§21.     Relation  between  Juridical  Thinking  and   Ethical 

Influences 371 

§  22.     Relation  between  Juridical  thinking  and  Economic 

Phenomena 377 

§  23.  The  Place  of  the  Subject-Matters  of  Projection  in  the 
Classification  of  the  Entire  Subject-Matter  of  Juri- 
dical Thinking  into  Facts  and  Rules 384 

VI.    VARIOUS  SPECIAL  SUBJECTS 

§  24.     The  Analogy  of  Particular  Legal  Rules 391 

§  25.     The  Proof  of  So-called  Mental  Facts,  Especially  the 

Intention  of  Parties    394 

§  26.     "Safety-Valve  Concepts" 400 

§  27.     "Safety-Valve  Concepts"  continued 405 

VII.    CONCLUSION 

§  28.  The  Prevalent  Theory  of  Interpretation  as  the  Ex- 
pression of  a  Social  Need 414 

§  29.     Legal  Truth  418 

§30.     Some  Random  Remarks  on  Bringing  Jurisprudence 

into  Closer  Relations  with  other  Social  Sciences .  . .         421 

PART  II 

THE  PROBLEM  OF  THE  LEGISLATOR 

CHAPTER  XI 

METHODS  FOR  SCIENTIFIC  CODIFICATION 
By  Alexandre  Alvarez 

§    1.     Introduction 430 

I.    REFORMS  IN  THE  STUDY  OF  PRIVATE  LAW 

§   2.     Defects  in  the  Present  System  of  Teaching 433 

1 :  Distribution  of  Studies 435 

2:  Fundamental  Studies    436 

§    3.     TheStudyof  the  History  of  Law 437 

1 :  Conception  and  Method  of  Flach 438 

2:  The  History  of  Institutions 439 

3:  Social  Environment  .  441 


xviii  CONTENTS 


§    4.     The  Study  of  Positive  Law 

1:  Reconstruction  of  Civil  Institutions 

2:  Method  of  Reconstruction   

3:  Old  and  New  Methods  Contrasted 

4 :  Results 

§    5.     Interpretation  of  Private  Law    

1:  Future  Function  of  Interpretation 

2:  Future  Method  of  Interpretation 

3:  The  Method  is  Objective 

§    6.     The  Study  of  Comparative  Law 

1 :  Various  Opinions  on  the  Object  of  Comparative 

Law 453 

2:  Wherein  These  Conceptions  Fail 455 

3:  True  Aim  and  Method    457 

§    7.     True  Basis  and  Object  of  Jurisprudence 460 

1 :  Jurisprudence  as  an  Ideal 461 

2:  Jurisprudence  and  International  Law    462 

3:  Jurisprudence,   Legislation,  and  Judicial  Deci- 
sions           463 

II.    THE  FUTURE  OF  CODIFICATION 

§    8.     Principles  Underlying  Future  Codification 464 

1 :  Theories  as  to  These  466 

2:  The  Spanish  Civil  Code    470 

3:  The  German  Civil  Code 471 

4:  The  Problem  of  the  Underlying  Principles    ....         473 
5:  Legislative  Powers  of  the  Judiciary  and  of  Cer- 
tain Groups 474 

6:  Codification  by  Institution  rather  than  Subject         477 

7:  Other  Underlying  Principles 478 

8:  Those  to  be  Rejected    -. . .         479 

§    9.     Governing  Ideas  of  Future  Codification   480 

1 :  Reforms  Introduced  by  the  German  Civil  Code        482 
2:  Limitations  of  the  German  Code    485 

§  10.     Origin  of  the  Changes  in  Underlying  Principles  and 

Governing  Ideas 486 

§  11.     Method  of  Revision    489 

1:  Method  of  Drafting  the  Spanish  and  German 

Civil  Codes  490 

2:  Conclusions 493 

3:  Congress  of  Latin  Countries  on  Comparative 

Legislation 495 


CONTENTS  xix 

CHAPTER  XII 

THE  LEGISLATIVE  TECHNIC  OF  MODERN  CIVIL  CODES 

By  Francois  Geny 

Page 

§    1.     The  Need  for  Legislative  Technic 498 

§    2.     Different  Kinds  of  Legal  Technic  Denned 500 

§    3.     Legislative  Technic  in  the  Narrow  Sense 505 

§    4.     The  Elements  of  Legislative  Technic  Classified 510 

§    5.     The  Technic  of  Codification 513 

§    6.     The  Technic  of  the  Code  Napoleon 516 

§    7.     Historical  Sources  of  the  Technic  of  the  French  Civil 

Code    518 

§    8.     The  Preliminary  Drafts  of  the  French  Civil  Code    .  .  522 

§    9.     Characteristics  of  the  French  Code  of  1804 527 

§  10.     The  Legislative  Technic  of  the  Future 533 

§  11.     The  Need  for  a  Consciously  Adopted  Technic 534 

§  12.     The  Technic  of  the  German  Civil  Code 539 

§  13.     The  New  Swiss  Civil  Code 544 

§  14.     Merits  of  the  Two  Types  Compared 549 

§  15.     Conclusion  555 

CHAPTER  XIII 

SCIENTIFIC  METHOD  IN  LEGISLATIVE  DRAFTING 
By  Ernst  Freund 

§    1.     Introduction 558 

§    2.     Legislative  Practice  as  a  Constructive  Factor 559 

§    3.     Increased  Executive  Participation  in  American  Legis- 
lation   i 562 

§    4.     Defects  of  American  Legislative  Procedure 563 

§    5.     English  Private  Bill  Legislation 566 

§    6.     Improvement  of  Legislative  Procedure 568 

1 :  Legislative  Commissions  for  the  Preparation  of 

Important  Measures   569 

2:  The   Delegation  of    Power  to  Administrative 

Commissions 570 

3:  The  Organization  of  Drafting  Bureaus 572 

4:  Codification  of  Standing  Clauses 575 

§    7.     Jurisprudence  as  a  Constructive  Factor 578 

§    8.     Source  Material 581 


INDEX    .  587 


EDITORIAL  PREFACE 


The  greatest  question  of  legal  theory  nowadays  in 
the  arena  of  professional  debate,  both  in  Europe  and 
America,  is  this:  What  is  the  inherent  nature  of  the 
judicial  and  the  legislative  functions,  and  of  the  difference 
between  them?  What  respective  parts  do  judge  and 
legislator  perform  in  the  declaring  or  formulating  of 
law?  And  what  are  the  materials  or  data  which  they 
respectively  employ  in  this  process  of  law-declaring?  In 
short,  is  there  any  inherent  necessity  for  two  distinct 
functionaries?  And  if  there  is,  what  are  the  respective 
limitations  and  requirements  in  their  methods  of  reason- 
ing? 

It  might  seem  singular  that  such  a  fundamental  debate 
should  not  have  matured  in  professional  thought,  before 
the  era  of  to-day.  Can  this  tardiness  be  accounted  for? 
Does  political  history  account  for  it? 

We  must  recall  the  fact  that  even  as  late  as  the  rise 
of  the  Prankish  State,  the  preponderance  of  influence 
in  the  development  of  economic  life  and  in  the  admin- 
istration and  evolution  of  private  law  on  the  Continent 
lay  with  the  mark  assemblies  and  other  local  jurisdictions, 
and  that  there  could  be  no  question,  under  these  simpler 
conditions  of  social  grouping,  of  a  method,  either  of, 
or  in,  the  law. 

We  must  remember,  too,  that  under  any  of  the  regal 
systems  obtaining  in  Europe  before  the  French  Revo- 
lution, the  judges  were  invariably  the  king's  appointees, 
and  that  the  struggles  to  determine  the  location  of 
legislative  power  were  essentially,  in  their  vital  personal 


xxii  EDITORIAL  PREFACE 

aspect,  struggles  between  the  parliamentary  or  popular 
personnel  and  the  royal  personnel.  And  we  may  well 
conclude  that  the  latent  judicial  share  in  the  law-declar- 
ing function  would  naturally  not  emerge  as  an  issue ;  for 
the  judiciary  were  subordinated  to  the  king>;  and  the 
notable  exception,  that  of  the  French  Parlement,  is  one 
that  "proves  the  rule,"  for  the  struggle  here  between 
the  King  and  Parlement  was  centered  on  the  legislative 
power,  and  the  judicial  power  of  Parlement  was  only 
an  appurtenant  incident,  not  brought  into  contrast  and 
conflict. 

But  when  Montesquieu's  famous  triple  separation  of 
powers — legislative,  judiciary,  and  executive  —  became 
practically  accepted,  why  did  not  this  separation 
of  judicial  and  legislative  functions  lead  to  an  issue, 
and  to  a  general  inquiry  into  its  necessity?  Because 
(we  must  infer)  the  spirit  of  the  French  Revolution  had 
so  emphatically  settled  the  location  of  legislative  power 
that  the  exclusive  dominance  of  the  parliamentary  body 
as  the  declarer  of  law  was  placed  beyond  question,  even 
for  the  judiciary,  —  and  was  bound  to  remain  so  for  a 
long  time  to  come.  And  the  American  Constitution 
enshrined  this  dominance. 

But  when  the  time  should  come  that  the  personal 
aspect  of  the  class-struggle  had  ceased  even  to  be 
remembered,  —  when  the  judicial  personnel  had  become 
practically  democratized,  by  popular  judicial  elections 
or  otherwise,  the  question  of  theory  was  ripe  for  fermen- 
tation. When  any  country  to-day  can  look  at  its  judicial 
body  and  at  its  legislative  body,  and  see  a  hundred 
judges  drawn  from  a  professional  legal  class,  and  a  hun- 
dred legislators  drawn  from  the  same  professional  legal 
class,  distinguished  from  each  other  in  no  substantial 
respect  of  birth,  education,  class  interest,  or  tradition, 
and  employing  more  or  less  identical  materials  of  thought 


EDITORIAL  PREFACE  xxiii 

in  their  technical  labors,  —  when  the  judiciary  com- 
mittees of  the  so-called  legislatures  are  found  carefully 
collating  the  bearings  of  judicial  decisions  and  the  so- 
called  judges  are  seen  expounding  considerations  of 
public  policy,  the  question  is  then  bound  to  present 
itself,  in  any  community,  sooner  or  later,  Why  are 
these  men  occupying  separate  posts?  Why  are  there 
separate  posts?  Why  do  legislators  legislate  and  judges 
judge?  What  is  the  inherent  distinction  between  their 
functions? 

No  doubt  there  is  a  distinction.  But  just  what  is  it? 
And  what  is  its  relation  to  the  nature  of  law?  And 
what  separate  processes  and  materials  of  thought  does 
it  impose  upon  each  functionary?  For,  until  we  have 
satisfied  ourselves  on  these  points,  we  cannot  expect 
to  proceed  practically  to  remedy  intelligently  any 
observed  defects  of  operation  in  either. 

Here  we  come,  of  course,  to  fundamentals,  —  the 
nature  and  processes  of  law,  justice,  judgment,  legis- 
lation. Such  is  the  connection  which  arises  between 
the  problenvof  the  day  and  the  philosophy  of  law. 

The  problem  of  legal  method  has  become  a  specific 
one  in  jurisprudence  substantially  within  about  the  last 
twenty  years.  Certain  special  inquiries  which  logically 
belong  in  this  field  (like  that  concerning  codification) 
are  very  much  older,  and  it  is  interesting  to  note  that 
it  was  principally  the  codification  of  German  private 
law  in  1896  which  served  to  attract  writers  in  all  depart- 
ments of  legal  science  to  the  problems  of  legal  method. 
The  literature  has  grown  already  to  large  proportions. 
The  reserves  of  mental  force  which  (it  may  be  assumed) 
are  normally  in  existence  in  any  given  country  or 
countries  in  constant,  if  not  calculable  quantities,  and 
which  find  expression  in  literary  and  scientific  products, 
have,  within  this  period,  been  diverted  away  from  the 


xxiv  EDITORIAL  PREFACE 

older  conventional  lines  which  brought  to  light  intel- 
lectual outpourings  on  "Naturrecht,"  "Juristische  Ency- 
klopadie,"  and  "Allgemeine  Rechtslehre,"  and  towards 
the  problems  of  legal  method.  It  would  seem  at  any  rate, 
to  speak  of  the  last  fifteen  years  especially,  that  there 
has  been  a  very  considerable  falling-off  in  books  of  the 
first  type,  and  a  large  production  of  books  of  the  second. 

The  French  Civil  Code  of  1804  did  not  stimulate  a 
similar  intellectual  movement;  nor  did  the  Austrian 
Civil  Code  of  1811  have  that  result.  The  explanation, 
however,  is  simple  enough.  The  economic  milieu  then  was 
largely  non-industrial,  society  internally  was  more  stable, 
and  although  the  same  problems  then  existed  in  form,  at 
least,  they  did  not  rise  to  the  level  of  juristic  conscious- 
ness because  of  a  difference  of  content.  Furthermore,  the 
strain  of  economic  readjustment  was  absorbed  by  the 
legal  machine  without  great  effort,  and  especially  so 
far  as  concerns  the  part  of  the  French  Court  of  Cassation. 

We  have  suggested  that  the  problems  themselves, 
in  form,  are  not  new.  That  is  true.  We  have  only 
to  look  back  to  the  age  of  Labeo  and  Capito  to  find  in 
principle  the  modern  problems  of  legal  method.  The 
immediate  genealogy  of  the  present  luxuriance  of  writing 
in  this  new  department  of  legal  science,  however,  may 
be  traced  to  von  Jhering's  "Scherz  und  Ernst  in  der 
Jurisprudenz"  (1885)  followed  a  little  later  by  Kohler, 
and  then  followed  by  Geny  and  Ehrlich  (1899,  1903), 
with  whom  the  movement  takes  on  a  definite  form. 
And  the  present  volume  aims  to  present,  in  an  order 
suited  to  develop  the  various  stages  of  the  discussion, 
the  most  useful  recent  utterances  of  eminent  jurists  on 
the  principal  aspects  of  the  problem. 

Dividing  the  general  subject  under  two  heads  — 
the  Judicial  Function  and  the  Legislative  Function  — 
the  chapters  under  the  first  head  must,  nevertheless, 


EDITORIAL  PREFACE  xxv 

inevitably  concern  themselves,  at  various  points,  with 
the  relation  of  judicial  decision  to  legislation.  The 
chapters  under  the  second  head,  assuming  this  dual 
aspect  to  have  received  clarification  as  to  its  theoretical 
foundation,  proceed  to  deal  solely  with  the  problems 
peculiar  to  the  legislative  function. 

The  chapters  of  the  first  division  —  the  Judicial 
Function  —  begin  with  the  now  celebrated  utterances 
of  Geny  and  Ehrlich  on  "freedom  of  judicial  decision," 
the  two  whose  expositions  awakened  the  entire  Conti- 
nent to  the  profound  possibilities  of  the  subject.  These 
are  followed  by  chapters  in  which  Gmelin,  Kiss,  Berolz- 
heimer,  Kohler,  Pound,  Gerland,  and  Lambert  have 
developed  various  principal  aspects  of  the  controversy,  — 
notably  the  contrast  between  the  English  and  the  Con- 
tinental judge,  the  subordination  of  the  judge  to  legis- 
lative law,  the  scope  of  materials  for  judicial  thought,  the 
extent  of  judicial  power  of  "interpretation,"  the  doctrine 
of  "gaps  in  the  law,"  and  the  inherent  logic  governing 
judicial  decision.  The  culmination  is  reached  in  Wurzel's 
chapter  on  "Methods  of  Juridical  Thinking."  He  who 
has  mastered  this  chapter  has  been  born  anew  into  a 
realm  of  clear  thinking  and  perpetual  disillusionment. 

The  chapters  of  the  second  division  introduce  us 
broadly  but  concisely  to  the  fundamentals  of  the 
legislative  problem.  There  is,  however,  as  yet,  little 
literature  of  a  thorough-going  critical  character  in  this 
field.  The  future  must  see  more,  and  America,  not 
code-ridden  as  the  Continent  is,  but  fertile  in  a  spawn- 
ing mass  of  incoherent  legislation,  is  the  natural  and 
needful  place  for  its  development. 

Without  attempting  even  to  outline  the  many  varied 
aspects  of  these  chapters,  we  may  in  this  preface  notice 
some  of  the  principal  features  that  interest  us  in  each 
of  the  divisions. 


I.    THE  JUDICIAL  FUNCTION 


The  knowing  what  is  just  and  what  unjust,  men  think  no  great 
instance  of  wisdom,  because  it  is  not  hard  to  understand  those  things 
of  which  the  laws  speak.  They  forget  that  these  are  not  just  acts 
except  accidentally.  To  be  just,  they  must  be  done  and  distributed 
in  a  certain  manner.  And  this  is  a  more  difficult  task  than  knowing 
what  things  are  wholesome.  For  in  this  branch  of  knowledge  it  is 
an  easy  matter  to  know  honey,  wine,  hellebore,  cautery,  or  the  use 
of  the  knife;  but  the  knowing  how  one  should  administer  these 
with  a  view  to  health,  and  to  whom,  and  at  what  time,  amounts 
in  fact  to  being  a  physician. 

Aristotle,  Nicomachean  Ethics,  v,  9,  1137a. 


An  interesting  circumstance,  which  explains  in  part 
the  difficulty  of  the  problem  in  its  practical  aspect,  is 
the  contrast  between  the  personal  element  in  history 
and  the  jural  element  in  theory.  The  theoretical  purity 
of  the  problem  is  and  always  has  been  disturbed  by 
the  factional  status  quo  of  politics.  When  we  find  the 
Roman  praetor  deciding  particular  causes  and  also 
issuing  general  edicts,  we  realize  that  the  course  of 
Roman  politics,  in  the  struggle  for  power  between  consuls, 
tribunes,  comitial  assemblies,  and  senate,  had  resulted 
for  the  time  in  a  pragmatic  adjustment  which  left  in  the 
praetor's  hands  a  portion  of  both  functions,  legislative 
and  judicial.  So,  too,  in  France,  the  devious  path  by 
which  the  royal  power  became  paramount  in  all  fields 
under  Louis  XIV  left  the  provincial  Parlements  in  the 
possession  of  a  limited  portion  of  both  functions;  the 
recipe  for  the  mixture  being  very  different  from  that 
of  the  praetors.  And  again,  in  our  own  history,  even 
after  Montesquieu's  triple  distinction  had  come  into 
common  vogue  theoretically,  the  traditions  of  the 
colonial  legislatures  and  the  alignments  of  local  politics 


THE  JUDICIAL  FUNCTION  xxvii 

sometimes  found  the  early  state  legislatures  indisposed 
to  observe  the  distinction;  as,  for  instance,  in  Rhode 
Island,  where  "originally  the  General  Assembly  seems  to 
have  considered  itself  a  court  as  well  as  a  legislature,"1 
and  this  attitude  was  not  abandoned  until  after  thedecis- 
sion  of  Taylor  v.  Place,  in  1856 2;  for  in  this  community 
the  actual  personnel  of  the  Legislature,  moved  by 
local  partisan  strife,  was  evidently  ready  to  exercise 
the  judicial  function.  And,  still  more  notably,  the 
success  of  Marshall  in  vesting  the  federal  judi- 
ciary with  the  revision  of  legislative  statutes  on 
constitutional  grounds,  and  thus  in  preserving  a  legis- 
lative veto  for  the  judiciary,  was  an  expression  of  the 
deeper  struggle  between  two  political  parties  holding 
antagonistic  convictions  in  the  broader  field  of  general 
politics.3 

Thus,  we  see,  the  actual  allotment  of  the  detailed 
portions  of  the  legislative  and  judicial  functions  varies 
at  a  given  time  and  place,  according  to  the  then  state 
of  equilibrium  of  political  interests;  which  in  turn 
involves  personnel,  traditions,  and  other  independent 
considerations.  In  short,  the  actual  solution  of  the 
problem  is  and  always  has  been  complicated  by  his- 
torical and  personal  issues.  In  pure  theory  it  is  never 
presented. 

None  the  less,  it  is  possible  and  necessary  to  treat 
it  as  a  question  of  theory,  and  to  inquire  into  its  general 
elements,  common  to  all  times  and  places. 

There  seem  to  be  at  least  four  distinct  and  large 
questions  involved. 

1  Quoted  by  Chief  Justice  Durfee  from  Justice  Stiness  in  his  essay  on 
Samuel  Ames  (Lewis'  "Great  American  Lawyers,"  v,  301). 

*4  R.  I.  324. 

3  Marshall  was  "by  far  the  most  popular  Federalist  in  Virginia,  per- 
haps in  the  United  States"  (W.  D.  Lewis'  "Great  American  Lawyers," 
ii,  337). 


xxviii  EDITORIAL  PREFACE 

1.  Is  it  inherently  necessary  that  the  judge  should 
be  subordinate  to  the  statute?     Let  us  call  this,  for  short, 
the  question  of  Judiciary  Subordination. 

2.  Even  if  he  is,  where  does  the  control  of  the  statute 
stop,  leaving  him  free  beyond  that  point?     Let  us  call 
this  the  question  of  Judiciary  Interpretation. 

3.  So  far  as  he  is  free,  how  far  is  he  controlled  by 
his  own  prior  declarations?     Let  us  call  this  the  ques- 
tion of  Judiciary  Statification. 

4.  And,  so  far  as  he  is  not  so  controlled,  what  does 
furnish    him   any   other   guide   or   control,    superior    to 
his  own  momentary  and  unformulated  sense  of  justice? 
This  we  may  call  the  question  of  Judiciary  Rectification. 

Let  us  look  a  moment  at  the  first  question: 

1.  Is  it  inherently  necessary  that  the  judge  should 
be  subordinate  to  the  statute?  —  the  question  of  Judiciary 
Subordination. 

To  get  the  proper  point  of  view,  we  must  here  make 
some  assumption  as  to  the  use  of  terms,  i.e.,  the  dis- 
tinction of  ideas  implied  in  "judicial"  and  "legislative". 
There  certainly  are  two  distinct  processes. 

One  is  the  process  of  (1)  formulating  a  rule  in  more 
or  less  general  terms,  (2)  because  of  certain  policies 
deliberately  deemed  to  be  controlling;  i.e.  (1)  formula- 
tion (2)  to  effect  a  felt  purpose.  This  we  may  assume 
to  be  the  essence  of  what  we  usually  call  "legislation." 

The  other  process  is  that  of  deciding,  by  an  agent 
of  state  power,  a  controversy  existing  between  two 
individuals  (or  the  State  and  an  individual),  by  rational 
(not  merely  personal)  considerations,  purporting  to 
rest  on  justice  and  law  (i.e.  the  community's  general 
sense  of  order). 

Now  these  two  processes  might  conceivably  be  per- 
formed by  the  same  person  or  group,  and  have  often 


XXIX 


been  so  performed,  in  variant  shares  or  allotments, 
and  the  first  inquiry  that  arises  is  whether  they  ought 
to  be  so  merged,  in  any  degree.  But,  for  the  purpose 
of  theory,  we  may  now  assume  that  this  question  has 
been  settled ;  and  that  it  has  been  settled  on  historic 
a,nd  political  grounds,  by  allotting,  provisionally  and 
primarily,  the  whole  of  the  one  process  to  one  person 
or  group  of  officials,  and  the  whole  of  the  other  to 
another  person  or  group.  And  we  may  ignore  for  the 
moment  the  logical  difficulty  to  be  mentioned  under 
the  next  head  (due  to  the  inherent  abstractness  of 
legislation).  We  shall  then  come  to  the  question: 
Does  it  work? 

That  is  to  say:  //  the  legislative  process  were  officially 
so  organized  that  it  worked  perfectly,  no  occasion  would 
arise  for  asking  whether  the  judiciary  could  be  freed 
from  subordination  to  it.  If  the  legislative  body  were 
to  sit  continuously,  were  to  deliberate  ail-wisely,  and 
were  to  formulate  correctly  and  consistently,  the  judici- 
ary process  could  be  left  to  operate  in  simple  subordina- 
tion, by  merely  applying  the  rules  to  concrete  cases. 
For  whenever  an  exception  appeared  to  be  needed,  or 
a  change  to  be  desirable,  there  would  be  instant  ref- 
erence to  the  legislative  body,  and  its  all-wisdom  would 
supply  the  needed  rule  or  exception,  properly  framed.  . 

But  the  legislative  process  never  does  work  perfectly. 
The  legislative  officials  sit  intermittently,  deliberate 
hastily  and  unwisely,  and  formulate  inconsistently. 
Moreover,  they  do  not  in  the  traditional  Anglo-American 
State  (nor  in  many  others  of  history)  legislate  com- 
prehensively on  all  topics,  but  only  on  some  of  the 
topics.  Under  such  circumstances,  then,  should  the 
legislative  formulations  be  accorded  a  supreme  domina- 
tion? To  accord  such  supremacy  if  the  process  even 
purported  to  work  perfectly  would  be  conceivable. 


xxx  EDITORIAL  PREFACE 

But  to  accord  it  when  the  process  is  so  imperfectly 
organized  seems  absurd,  —  one  of  the  absurdest  things 
that  history  ever  allowed  to  occur.  To  vest  with 
absolute  steel-bound  rigidity  a  system  so  irregular  and 
limping  in  its  machinery  is  as  curious  a  notion  as  to 
send  a  steamship  to  sea  with  only  half  of  its  machinery 
put  together. 

From  this  point  of  view,  therefore,  it  is  entirely 
proper  to  raise  the  question  whether  the  officials  vested 
with  the  judicial  process  must  not  inherently  be  given 
some  independence  of  the  legislative  declaration,  i.e. 
the  statute.  And  Anglo-American  history  illustrates 
copiously  how  the  judiciary  have  in  fact  occupied  them- 
selves at  all  times  with  declarations  of  law  independent 
of  statute,  i.e.  with  genuine  legislation.  That  they 
have  done  so  is  now  seen  to  be  nothing  but  an  inevitable 
consequence  of  the  imperfect  organization  of  the  legis- 
lative process  in  separate  hands. 

There  is  here,  to  be  sure,  a  special  question  whether 
the  judiciary  should  not  be  purely  subordinate  to  the 
legislative  declaration  at  least  in  those  parts  of  the 
field  of  law  that  have  been  expressly  covered  by  the 
latter.  But  even  here,  in  view  of  the  imperfect  legis- 
lative machinery,  the  question  is  a  fair  one  to  raise 
whether  the  intellectual  weight  of  the  legislative  sanc- 
tion deserves  such  rigid  supremacy.  Here,  as  else- 
where, what  has  given  it  that  supremacy,  historically, 
has  been  its  political  (not  its  intellectual)  weight;  i.e. 
when  the  dominant  public  demand  has  expressed  itself 
through  the  legislature,  all  officials  must  yield  to  it,  — 
not  because  it  is  intrinsically  meritorious,  but  because 
it  represents  the  demands  of  actual  power. 

But  such  express  demands  of  actual  dominant  senti- 
ment are  not  usual.  The  mass  of  legislation  in  modern 
times  represents  merely  the  views  of  thirty  or  forty 


THE  JUDICIAL  FUNCTION  xxxi 

members  of  a  judiciary  committee  of  the  legislature, 
on  multifold  details  totally  unknown  to  public  senti- 
ment. Should  such  legislative  declarations  have  sac- 
rosanct dominance  over  the  judiciary? 

Incidentally,  at  this  point,  as  well  as  later,  arises 
the  question,  Can  we  trust  the  judiciary  with  such  a 
freedom?  Must  we  not  bind  them  by  statute?  Should 
we  be  safe  otherwise,  in  view  of  the  judicial  personnel 
as  it  is  composed  in  our  time  and  place?  No  doubt 
this  is  a  question  whose  answer  may  vary  at  different 
epochs  and  in  different  countries.  Evidently  the  Roman 
praetor,  for  example,  was  trusted  more  than  our  modern 
judges  are  trusted.  But  enough  here  at  this  point, 
where  the  question  is  merely  between  judiciary  and 
legislature^  to  insist  that  this  question  for  us  is  not 
merely  whether  we  could  trust  the  judges,  but  whether 
we  would  rather  trust  the  judges  than  the  legislators. 
If  it  is  to  be  a  mere  question  how  a  dominant  declaration 
of  this  or  that  rule  of  law  will  be  most  safely  formulated, 
will  the  ordinary  judiciary  committee  of  a  legislature 
be  more  safely  trusted  than  the  ordinary  bench  of 
supreme  judges?  If  we  are  to  attribute  a  sacrosanct 
domination  to  some  official  declaration  of  law,  we  must 
frankly  face  the  facts  of  present  practice,  and  not  pro- 
ceed upon  some  imaginary  and  theoretical  state  of  facts. 
As  laws  are  to-day  actually  made,  what  is  the  special 
guaranty  of  supreme  wisdom  furnished  by  the  usual 
operations  of  a  judiciary  committee  of  the  legislature? 

Such  are  some  of  the  considerations  that  arise  under 
our  first  general  question,  that  of  Judiciary  Subordina- 
tion. 

2.  Even  if  the  judge  is  subordinate,  where  does  the 
control  of  the  statute  stop,  leaving  him  free  beyond  that 
point?  —  the  question  of  Judiciary  Interpretation. 


xxxii  EDITORIAL  PREFACE 

This  question  has  so  many  angles  of  approach  that 
one  must  be  content  to  note  only  a  few  of  them. 

(1)  In  the  first  place,  where  ought  the  statute  to  stop? 
Should   it  descend    into  details,   or  should    it    remain 
in   abstractions   as   much    as   possible?    Should    it   be 
satisfied  to  proclaim  "Thou  shalt  not  steal!";  or  may 
it  well   attempt  to  describe  and   prohibit   multifarious 
varieties  of  stealing? 

This,  of  course,  is  not  strictly  involved  in  the  present 
question,  but  concerns  rather  the  Legislative  Function 
(post,  p.  xliii).  Suffice  it  here  to  lament  that  our  legis- 
lative traditions  have  never  evolved  a  method,  such 
as  the  French  have  evolved,  of  debating  great  ques- 
tions "  en  principe,"  as  they  say.  Our  own  more 
practical  tradition,  that  of  debating  the  fundamental 
principles  only  when  presented  as  an  issue  of  textual 
detail,  has  rendered  a  great  service  by  dispelling  obscur- 
ity of  views  and  by  forcing  practical  issues.  But  the 
over-emphasis  of  it  has  lost  a  valuable  feature  of  wise 
legislation.  For  example,  in  the  debates  of  the  National 
Conference  on  Workmen's  Compensation  Laws,  in 
1910,  much  was  gained,  in  time  and  clarity,  by  framing 
one  of  the  issues  thus:  "Shall  the  law  be  optional  or 
compulsory  for  employers?"  By  this  means,  the  textual 
details  were  removed  from  needless  dissension  until 
the  main  issue  had  been  settled. 

(2)  In  the  next  place,  where  does  the  control  of  the 
statute  stop?     Is  the  legislative  intent  the  sole  criterion? 

Here  a  broad  field  of  variant  views  is  opened.  Literally 
hundreds  of  views  can  be  found.4  Let  us  here  note  merely  a 
few  of  the  conventional  assumptions  that  are  questionable. 

(a)  One  of  the  most  interesting  conventional  assump- 
tions is  that  there  is  an  actual  legislative  will  at  all. 

«See  an  interesting  article  by  Professor  M.  R.  Cohen,  "The  Process 
of  Judicial  Legislation"  (American  Law  Review,  xlviii,  161,  1914). 


THE  JUDICIAL  FUNCTION  xxxiii 

If  there  were,  it  would  have  to  be  somewhere  existent 
in  some  persons.  Now  it  d6es  not  exist  in  the  voters 
at  large;  for  only  an  infinitesimal  number  of  them  are 
beforehand  acquainted  with  the  terms  of  the  bill;  and 
they  cannot  will  what  they  do  not  know;  the  most 
that  they  ever  will,  as  a  mass,  is  the  general  principle, 
e.g.  to  lower  the  tariff,  not  to  raise  it;  or  to  abolish 
imprisonment  for  debt,  not  to  preserve  it.  Nor  is  that 
will  to  be  found  in  the  legislators  as  a  body ;  for  in  nine 
cases  out  of  ten,  they  do  not  know  or  care  about  the  terms 
of  the  bill  for  which  they  vote.  In  the  last  analysis, 
therefore,  the  only  actual  legislative  will  is  the  will  of  a 
few  individuals  belonging  to  the  drafting  committee. 

The  candid  and  realistic  acknowledgment  of  this  fact 
has  surely  some  bearing  on  the  extent  to  which  the 
judiciary  should  be  held  bound  to  ascertain  and  to 
respect  the  "legislative  will." 

(6)  Another  conventional  assumption  is  that  this 
"legislative  will"  is  a  simple  undifferentiated  thing. 
In  fact,  there  are  distinguishable  at  least  three  sugges- 
tive elements,  —  the  will  or  intent,  the  meaning,  and 
the  motive.  There  is  a  will  or  intent  to  use  certain 
words.  There  is  also  a  meaning  or  sense  attached  to 
those  words.  And  there  is  a  motive  or  object  desired 
to  be  attained  by  those  words.  In  the  interpretation 
of  the  documents  of  private  law  this  distinction  is  a 
familiar  and  important  one. 

The  first  element,  the  will  or  intent  to  use  certain 
words,  seldom  gives  opportunity  for  doubt  in  dealing 
with  legislative  enactments. 

The  second  element,  the  meaning  or  sense  of  the 
words,  in  particular  or  as  a  whole,  begins  to  open  a 
wide  field  for  speculation.  By  the  general  principle  of 
interpretation  in  private  law,  the  objective  standard 
now  becomes  dominant;  i.e.  not  the  word-usage  of  the 


xxxiv  EDITORIAL  PREFACE 

individual,  but  that  of  the  community,  may  be  control- 
ling. Here  the  judiciary  function  obtains  a  large  scope. 

The  third  element,  the  motive  or  object  desired  by 
the  legislators,  opens  a  still  wider  field.  Here  the 
individual  motive  of  the  legislator  or  voter  may  cease 
to  have  any  value  for  purposes  of  control,  not  only 
because  it  is  often  unascertainable,  but  also  because  it 
is  so  variant.  An  amusing  illustration  is  afforded  in 
the  votes  at  a  presidential  election.  The  chronicles 
of  the  daily  newspapers  show  that  out  of  any  hundred 
voters,  of  whom  fifty  are  declaring  for  Mr.  Wilson  and 
fifty  for  Mr.  Hughes,  each  respective  fifty  express  the 
most  variant  and  conflicting  motives  for  their  votes. 
Only  their  votes  agree ;  their  motives  may  have  nothing 
in  common.  If  the  vote  were  to  be  taken  on  each  one 
of  the  twoscore  motives  or  objects  assigned,  and  not 
on  the  simple  choice  between  two  men,  the  alignments 
of  the  hundred  voters  would  differ  on  each  of  the  two 
score  of  ballotings.  What  does  this  illustrate?  That 
to  control  the  judiciary  by  the  supposed  motive  or 
object  of  the  legislators  is  to  prescribe  a  standard  im- 
possible of  practical  use,  except  in  an  occasional  clear 
and  undisputed  instance. 

(c)  And  this  brings  us  to  another  stage  of  the  inquiry, 
—  to  the  question  whether,  since  the  legislator's  sub- 
jective standard  of  motive  or  policy  is  an  impracticable 
criterion,  an  objective  standard  may  properly  become 
available,  viz.,  either  the  general  policy  as  felt  and  con- 
ceived by  public  opinion  at  large  with  specific  reference 
to  the  legislation  in  question,  or  the  general  policy  of  the 
needs  of  the  community  as  determinable  by  the  judiciary 
themselves. 

Needless  to  say,  public  policy  in  one  of  these  senses, 
is  and  has  been  and  always  will  be  more  or  less  con- 
sidered by  the  judiciary.  The  question  for  the  jurist  is: 


THE  JUDICIAL  FUNCTION  xxxv 

Where  does  this  criterion  belong  in  the  orderly  scheme 
of  Judiciary  Interpretation?  What  are  the  just  and 
knowable  limits  for  its  invocation? 

Enough  here  to  suggest  that  this  question  cannot  be 
answered  without  first  testing  the  validity  of  some  of 
the  conventional  assumptions  above  noted. 

(3)  In  the  third  place,  how  far  is  legislative  lan- 
guage inherently  incapable  of  controlling  the  judiciary? 

This  involves  the  logical  nature  of  jural  thinking. 
Words  are  but  symbols.  They  compress  into  a  single 
symbol  a  complex  process  of  thought,  and  compression 
signifies  exclusion.  Thus  the  person  whose  duty  it 
is  to  apply  the  words  of  a  statute  must  reexpand  the 
thought  when  applying  it.  And  thus  arise  unlimited 
opportunity  and  necessity  for  the  judiciary  to  recon- 
struct the  thought  by  its  own  standard  of  experience, 
which  may  and  must  often  differ  from  that  of  the  legis- 
lators. If  we  recollect  the  differences  of  personality 
and  community,  and  add  to  those  the  differences  caused 
by  lapse  of  times  and  change  of  environment,  we  shall 
realize  that  words  are  far  from  fixed  things;  they  are 
the  most  fluent  and  indefinite  of  things. 

There  used  to  be  an  ancient  milestone  in  the  town 
of  Cambridge,  Massachusetts,  opposite  Harvard  Col- 
lege ;  and  on  the  imperishable  granite  was  engraved  in 
sturdy  crude  characters:  "1734.  Boston,  7  M."  Now 
for  the  students  of  the  college  it  was  a  perpetual  wonder 
how  that  milestone-maker  could  have  proclaimed  the 
falsity  that  Boston  was  seven  miles  away;  for  it  lay 
plainly  in  view  only  three  miles  away  across  the  Charles 
River,  by  easy  walk  across  the  bridge.  But  the  anti- 
quarian could  have  told  them  that  in  the  year  1734 
Boston  was  seven  miles  by  road  from  Cambridge;  for 
the  bridge  did  not  exist  in  1734,  and  the  traveler  must 
pass  by  a  long  detour  up  the  river  bank  to  a  crossing, 


xxxvi  EDITORIAL  PREFACE 

/ 

which  made  his  journey  seven  actual  miles,  as  the 
milestone-maker  faithfully  recorded .  Time  had  deprived 
his  words  of  any  true  meaning. 

This  logical  impossibility  of  fixing  thought  by  a  word- 
is  of  course  most  strikingly  seen  in  these  changes  gene- 
rated by  time,  —  in  the  questions  whether  automobiles 
are  "vehicles,"  under  laws  of  sixty  years  ago  requiring 
towns  to  maintain  roads  in  good  repair  for  vehicles; 
whether  phonographic  disks  are  "copies"  of  music 
entitled  to  protection  under  a  statute  enacted  before 
the  phonograph  was  imagined;  and  so  on.  But  it  is 
also  inherent  in  enactments  not  affected  by  changes 
of  time  or  place.  The  citizenship  of  a  corporation 
under  the  Federal  Judiciary  Act;  the  scope  of  a  work- 
men's compensation  act  denned  as  applying  only  to 
injuries  received  "in  or  about"  the  place  of  employ- 
ment; the  voidness  of  a  bequest  to  a  will  witness  who 
is  a  "beneficiary"  under  the  will;  these  and  a  thousand 
other  instances  illustrate  the  truth. 

But  this  is  only  the  simplest  form  of  the  difficulties 
that  arise  from  the  inherent  logical  impossibility  of 
controlling  the  judiciary  by  the  words  of  a  statute. 
For  its  more  subtle  aspect,  and  its  more  profound 
origin,  the  reader  is  referred  to  the  masterly  essay  of 
Dr.  Wurzel,  on  "Methods  of  Juridical  Thinking," 
included  in  this  volume. 

3.  A  further  great  inquiry  is  How  far  is  the  judge 
controlled  by  his  own  prior  declarations?  —  the  question 
of  Judiciary  Statification,  of  stare  decisis. 

Here  one  asks  at  the  outset,  Why  should  the  judge 
be  expected  to  follow  his  own  prior  declarations?  And 
the  immediate  answer,  of  course,  is:  Because  the  in- 
herent nature  of  Law  as  contrasted  with  non-law  lies 
in  its  uniformity;  and  a  fundamental  postulate  of  our 


THE  JUDICIAL  FUNCTION  xxxvii 

system  is  that  Justice  (the  settlement  of  the  individual's 
share  of  anything  in  life,  when  disputed  by  another 
individual)  is  to  be  sought  through  Law. 

Reserving  the  right  to  ask  whether  uniformity  as 
an  element  of  Law  (the  abstract)  necessarily  involves 
uniformity  as  an  element  of  Justice  (the  concrete),  we 
may  proceed  to  ask,  What  are  the  advantages  attri- 
butable to  uniformity?  And  here  the  answer  generally 
conceded  seems  to  be  that  three  desired  advantages  are 
thus  secured:  viz.  Equality,  Stability,  and  Certainty. 
So  that  our  question  becomes :  How  far  does  stare  decisis 
tend  to  secure  equality,  stability,  and  certainty? 

(1)  Equality  is  not  a  product  for  which  stare  decisis 
is    necessary.     Equality    is    something    desired    for    the 
persons  now  under  the  law;   it  does  not  call  for  sameness 
of  treatment  between  those  of  the  present  and  those 
of  the  past  or  the  future  generation.     Gompers  need 
not  receive  equal  law  with  Hampden  or  with  the  citizen 
of  Utopia,  provided  he  receives  equal  law  with  Harriman. 
Allowing,  therefore,  a  short  time  before  and  after  now 
as  necessary  for  the  consciousness  of  equality  with  our 
own  generation,  equality  calls  for  no  longer  period  of 
stare  decisis. 

(2)  Stability  is  indeed  a  product  of  stare  decisis; 
but  the  converse  proposition,  viz.  that  stare  decisis  is 
invariably  necessary  to  stability,  is  not  true,  and  yet 
this  converse  proposition  is  the  one  ordinarily  implied. 
In  so  far  as  the  faith  of  contracts  is  involved,  and  the 
security  of  property,  there  must  be  adherence  to  prior 
declarations  of  law  in  so  far  as  such  faith  and  such  security 
have  been  rested  upon  them,  but  so  far  only.     And  does 
a  change  of  rule  in  a  new  concrete  case  necessarily  affect 
prior  contracts  and   properties?     If  a  Supreme  Court 
to-day  holds  that  a  contract  is  formed  by  deposit  of 
an  acceptance  in  the  mail  box,  changing  from  the  rule 


xxxviii  EDITORIAL  PREFACE 

that  arrival  of  the  acceptance  forms  the  contract, 
may  not  this  leave  valid  all  relations  effected  before  the 
promulgation  of  the  decision?  In  other  words,  stability 
is  wanted  for  the  sake  of  the  concrete  relations  of  indi- 
viduals, not  for  the  sake  of  the  abstraction;  and  the 
former  can  be  preserved,  by  exception,  without  pre- 
serving the  latter.  The  legislature  makes  no  scruple 
of  following  this  distinction;  every  volume  of  session 
laws  contains  statutes  ending  with  the  proviso  that 
"this  act  shall  take  effect  from  January  first,  and  shall 
not  be  applicable  to  any  contract  made  or  cause  of 
action  accrued  prior  to  that  date."  Why  could  not  the 
judicial  doctrine  of  stare  decisis  be  applied  with  the  same 
restriction?  It  would  be  an  interesting  experiment. 

(3)  Certainty  is  the  third  supposed  virtue  of  stare 
decisis.  The  theoretical  value  of  certainty,  and  the 
best  feasible  method  of  securing  it,  are  interesting 
questions.  But  it  is  difficult  to  reflect  on  this  part  of 
the  question  without  emphasizing  the  pragmatic  ele- 
ment. For  the  inquiry  presses,  How  far  indeed  has 
certainty  been  secured  by  our  practice?  Would  a  less 
frequent  invocation  of  stare  decisis  have  given  the 
community  less  certainty  in  justice?  Is  the  degree 
of  the  present  obvious  lack  of  certainty  due  to  other 
causes,  or  to  the  inherent  impotency  of  stare  decisis 
for  that  purpose?  In  countries  like  France,  which 
started  a  century  ago  with  the  negation  of  that  prin- 
ciple, but  gradually  came  to  recognize  it  to  a  degree, 
has  there  been  adequate  certainty? 

And,  if  we  look  away  from  the  community  at  large 
to  the  profession  of  law  practitioners,  how  far  may  we 
suppose  that  the  laudation  of  certainty  has  been  due 
in  part  to  mere  mental  convenience  of  the  profession? 
Such  a  nai've  confession  as  that  of  Lord  Ellenborough  we 
do  not  often  receive,  but  its  significance  is  radical:  "If 


THE  JUDICIAL  FUNCTION  xxxix 

this  rule  were  to  be  changed,  a  lawyer  who  was  well 
stored  with  these  rules  would  be  no  better  than  any 
other  man  that  is  without  them." 

There  is  much  more  to  this  theme.  But  again  it 
is  a  place  where  conventional  assumptions  must  be 
challenged.  And  the  essays  in  this  volume  supply 
that  challenge. 

4.  And  still  another  question  remaining  is,  What 
can  furnish  the  judge  any  other  guide  or  control,  superior 
to  his  own  momentary  and  unformulated  sense  of  justice?  — 
the  question  of  Judiciary  Rectification. 

The  judge  must  be  "rectified,"  we  all  assume.  That 
is,  in  applying  abstract  Law  to  do  concrete  Justice,  there 
must  be  some  standard  of  guidance  for  him.  We  do 
not  want  the  meaningless  Justice  of  the  traditional 
Arabian  sheikh,  —  the  justice  of  individual  whim  and 
momentary  notion.  If,  then,  he  is  not  to  be  mechani- 
cally controlled  by  statute  and  by  precedent,  what 
shall  be  the  substitute? 

The  relaxation  would  not  necessarily  be  as  cataclys- 
mal  as  it  might  seem.  There  will  always  be  a  con- 
trolling influence  by  the  abstract  law,  wherever  a 
professional  class  fills  the  bench.  This  has  been  so 
from  the  time  of  the  priest-judges  of  primitive  times 
until  to-day.  Moreover,  there  is  a  large  material  fur- 
nished by  common  sense  (common  and  undisputed, 
that  is)  and  by  common  policies.  Beyond  this  lies  a 
field  of  questionable  scope.  And  no  doubt  there  is 
room  for  speculation  as  to  the  use  of  this  field  by  the 
judges.  Can  they  safely  be  turned  loose  into  it?  This 
is  the  problem  of  a  "freie  Rechtsfindung"  and  "libre 
recherche,"  the  needs  and  dangers  of  which  are  dis- 
cussed in  this  volume  by  the  trenchant  pens  of  Geny, 
Ehrlich,  and  other  jurists. 


xl  EDITORIAL  PREFACE 

Let  us  not  minimize  these  dangers;  let  us  merely  not 
exaggerate  them.  And,  for  consolation  in  the  prospect 
of  them,  let  us  recall  at  least  two  relevant  circumstances: 

(a)  In  the  first  place,  our  own  Supreme  Courts  have 
long  been  drawing  copiously  and  consciously  from  this 
unbounded    field    of   public   policy.     The   opinions   are 
full  of  such  discussions,  and  some  of  the  greatest  ques- 
tions of  the  day  have  been  settled  with  no  more  definite 
guidance  and  control.     Examples  taken  at  random  are 
the  decisions  settling  the  law  of  illness  caused  without 
impact    (nervous   shock,    "railway   spine,"  etc.)    where 
the  known  conditions  of  modern  personal  injury  litiga- 
tion have  furnished   the  main  grounds  of  judgment; 
the  law  of  releases  signed  by  patients  in  a  hospital, 
where  the  apparently  fixed  principles  of  documentary 
execution  have  been  subordinated  to  the  policy  applic- 
able to  such  a  situation;   the  law  of  privilege  for  torts 
in   general,   where   modern   conditions   have   at  many 
points  required   sole   reliance   upon   neither   precedent 
nor  statute.     And   this  list  might  be  indefinitely  en- 
larged.    An  extension  of  this  field  of  "libre  recherche" 
would  be  no  novelty  in  method. 

(b)  In  the  second  place,  the  judge's  liberty  could 
in  any  event  not  exceed  that  of  the  legislators,  whose 
liberty  (and  license)  of  reasoning  we  have  long  viewed 
(and    suffered)    with    equanimity.     Reflecting    on    the 
debate   that  occurs   in  a  judiciary  committee  of   the 
legislature,  when  an  ordinary  measure  of  private  law 
is  presented,  what  is  the  range  of  reasoning?     What 
of  the  personal  oddities,  the  maddening  irrelevancies, 
the  ignorant  assumptions,  the  crude  philosophies,  the 
fragmentary    conceptions,     the    narrow    outlook,     the 
obstinate  bias,  the  stolid  indifference  to  facts  and  needs? 
These  legislators,  in  their  motives  and  reasonings  for  a 
declaration  of  law,  have  a  "libre  recherche"  indeed.     But 


THE  JUDICIAL  FUNCTION  xli 

we  have  accepted  it  as  a  matter  of  course.  Why  not 
accept  it  for  the  judges  also? 

This  part  of  the  problem  after  all  is  not  so  trouble- 
some, perhaps,  as  another  part,  viz.  the  necessity  for 
drawing  the  line.  A  line  must  be  drawn  somewhere 
(by  hypothesis)  between  the  judiciary  operation  and 
the  legislative  operation,  —  so  long,  at  least,  as  separate 
officials  are  maintained  for  the  two  general  purposes. 
Now  when  a  concrete  case  is  presented  to  the  judge, 
in  what  classes  of  cases  should  he  refrain  from  "libre 
recherche,"  assuming  that  no  statute  is  involved?  How 
shall  those  classes  be  denned? 

For  example,  if  an  action  of  nuisance  were  to  be 
brought  against  a  liquor-seller,  but  no  statute  be  pro- 
duced declaring  liquor-selling  to  be  illegal,  might  a 
court,  if  it  entertained  the  conviction  that  liquor-sell- 
ing was  deleterious  to  the  local  welfare,  and  that  this 
liquor-seller's  business  in  particular  was  of  that  quality, 
declare  such  law  and  restrain  the  further  conduct  of 
that  business?  That  particular  topic  has  hitherto  been 
deemed  to  be  subject  only  to  legislative  declaration  of 
law;  and  the  policies  pro  and  contra  have  formed 
public  issues  on  which  legislatures  have  been  elected. 
We  may  suppose  that  any  definition  of  the  line  between 
judiciary  and  legislative  functions  would  desire  to 
allot  this  topic  to  the  latter.  But  what  definition  will 
dispose  workably  of  that  and  like  topics? 

Here  we  get  a  glimpse  of  an  important  argument 
against  the  extension  of  "libre  recherche"  —  free  range 
of  decision  —  for  the  judiciary.  That  body's  function 
of  doing  Justice  can  best  be  performed  in  independence, 
free  from  the  pressure  of  public  clamor.  If  then  we 
permit  them  to  enter  (more  freely  than  now)  the  field 
of  public  policy,  we  subject  them  to  the  loss  of  that 
very  independence  which  on  other  grounds  we  seek  to 


xlii  EDITORIAL  PREFACE 

secure  for  them.  The  legislature  is  the  body  that 
responds  to  momentary  public  opinion  and  registers 
the  will  of  the  majority.  Do  we  wish  another  body 
to  duplicate  that  function?  Do  we  not  need  one  body 
of  justice-dispensers  which  shall  be  primarily  concerned 
with  the  technical  material  of  the  law,  and  independently 
engaged  in  developing  it?  Does  not  the  vital  difference 
between  judiciary  and  legislature  lie  in  the  fact  that 
one  should  be  responsive  to  popular  opinion  and  the 
other  should  be  independent  of  it?  And,  if  so,  can  we 
guarantee  this  in  any  other  way  than  by  our  traditional 
system  ? 

There  may  indeed  be  a  fallacy  here,  in  these  ques- 
tions. For  is  it  correct  to  assume  that  even  the  legisla- 
tors ought  to  be  responsive  to  current  public  opinion? 
Is  that  consistent  with  representative  government? 
Should  Demos  be  voiced  directly  on  the  legislative 
benches;  or  does  not  the  best  tradition  of  our  fore- 
fathers demand  rather  that  the  legislator  should  be  an 
independent  thinker,  expert  in  the  subject  for  legis- 
lation, a  guide,  and  not  a  mere  messenger  for  the  mass 
of  the  voters? 

These  questions  disclose,  at  any  rate,  the  complexity 
of  the  problem,  and  verge  closely  upon  our  next  theme,  — 
the  Legislative  Function.  N 

J.  H.  W. 


II.    THE  LEGISLATIVE  FUNCTION 


Everyone,  it  is  true,  may  frame  an  hypothesis  as  he  pleases,  but 
yet  it  ought  to  be  practicable. 

Aristotle,  "Politics,"  bk.  ii,  ch.  vi,  126oa. 


Problems  of  legislation  touch  the  field  of  science 
in  two  ways:  in  matters  of  form,  and  in  questions  of 
content;  or  put  in  terms  which  are  beginning  to  find 
acceptance  and  definite  meaning,  these  problems  are 
those  of  legislative  technic  and  of  legislative  policy. 

In  this  volume  a  number  of  chapters  treat  the  diffi- 
culties, or  some  of  them,  of  legislative  technic;  but 
little  will  be  found,  except  by  way  of  suggestion,  as  to 
legislative  policy,  i.e.  the  kind  of  legislation  which  the 
State  should  attempt,  or  the  method  which  should  be 
pursued  in  developing  legislative  ideas.  This  lack 
of  specific  cultivation,  in  this  volume,  of  questions  of 
legislative  policy  is  not  merely  accidental,  but  appears 
to  be  due,  primarily,  to  the  silence  of  literature5  — 

*  A  number  of  volumes,  in  truth,  may  be  found  which  bear  the  hope- 
ful titles  "Principles  of  Legislation,"  or  names  of  similar  import;  but. 
unfortunately,  none  of  these  works  treats  legislative  policy  in  a  logically 
comprehensive  manner,  or  even  points  out  the  methodological  criteiia 
of  what  legislation  should  or  may  accomplish.  See  Mably,  "De  la 
legislation  ou  principes  des  loix,"  Amsterdam,  1777:  also  in  his  "CEuv- 
res,"  15  vols.,  Paris,  1794-5;  Justi,  "Grundsatze  der  Policeywissen- 
schaft,"  3d  ed.,  Gottingen,  1782;  Filangieri,  "Scienza  della  legislazione," 
Napoli,  1783:  also  in  his  "CEuvres,"  5  vols.,  and  commentary  by  Con- 
stant, Paris,  1832;  Bentham,  "Principles  of  Morals  and  Legislation"; 
Comte  (Charles),  "Traite  de  la  legislation,"  4  vols.,  Paris,  1835;  W. 
Jethro  Brown,  "The  Underlying  Principles  of  Modern  Legislation," 
London,  1912. 

It  is  quite  true,  however,  that  from  the  vast  literature  dealing  with 
expository,  philosophical,  and  historical  views  of  Law,  Society,  and 
State,  a  large  number  of  ideas  might  be  gathered  which  would  represent, 
among  the  rest,  such  names  as  Plato,  Aristotle,  Vico,  Aquinas,  Monies- 


xliv  EDITORIAL  PREFACE 

a  silence  which  may  seem,  in  the  great  multiplication 
of  books  and  essays,  and  the  wide  diffusion  of  ideas  of 
every  sort,  a  strange,  if  not  unbelievable  situation.6 

I.  The  intellectual  effort  of  the  centuries  devoted 
to  the  theoretical  side  of  legal  institutions  has  centered 
on  such  questions  as  the  concept  of  justice,  the  nature 
and  sources  of  law,  the  origin  of  government,  the  best 
form  of  the  State,  the  idea  of  sovereignty. 

The  natural  law  view  has  had,  and  continues  to  have, 
a  dominant  position  in  these  studies,  and  has,  unfor- 
tunately, distracted  attention  from  the  what  is  to  that, 
which,  by  supposition,  in  the  order  of  nature  or  of  reason 
ought  to  be.  The  facts  of  life  have  been  taken  for  granted 
by  this  attitude.  It  has  been  assumed  throughout  not 
only  that  the  phenomena  of  society  are  fully  under- 
stood and  within  the  grasp  of  that  quality  of  mind 
which  more  than  once  has  claimed  all  philosophy  for 
its  province  —  common  sense  —  but,  also,  that  these 
phenomena  are  at  all  points  under  the  potential  control 
of  lawmaking.  Nothing  is  more  familiar  than  the  naive 
thought  that  a  social  evil,  real  or  apparent,  being  dis- 
covered, nothing  further  remains  than  to  enact  a  law  of 
some  sort,  whereupon  the  imperfection  aimed  at  may  be 
expected  automatically  to  disappear. 

On  a  basis  of  procedure  in  close  connection  with  these 
misconceptions,  the  task  of  legal  science  was  thought 

quieu,  Savigny,  Herder,  Buckle,  Bentham,  and  Tarde,  or  to  call  upon 
the  volumes  in  this  series  for  inspiration,  the  names  of  Ehrlich,  Geny, 
Jhering,  and  Kohler.  But  to  make  a  selection  of  coherent  ideas  from 
sources  so  diverse  in  starting-point  and  outlook  would  of  itself  involve  a 
creative  effort  comparable  to  an  original  statement  and  elaboration 
of  the  essential  problems. 

«One  important  exception  must  be  noted  in  Kohler' s  "Lehrbuch  cler 
Rechtsphilosophie,"  translated  in  this  Series  (by  Albrecht),  which 
appears  to  be  the  most  profound  systematic  contribution  yet  offered  in 
the  field  of  legislative  policy.  The  value  of  this  work  deserves  to  be 
better  recognized. 


THE  LEGISLATIVE  FUNCTION  xlv 

to  be  that  of  explanation  or  criticism  of  legal  institutions 
in  the  light  of  nature  or  of  reason. 

It  will  be  convenient  to  discuss  the  last  proposition, 
before  attempting  to  deal  with  the  problems  and  the 
methods  of  legislative  policy. 

1 .  First,  legal  phenomena  were  thought  to  be  explain- 
able as  purely  natural  phenomena,  with  laws  analogous 
to,  or  even  identical  with  those  of  the  physical  sciences.7 
In  a  purely  mechanical  sense  there  were  in  the  evolution 
of  legal  phenomena  "corsi"8  and  "ricorsi"  and  even 
spirals9;  in  a  biological  sense,10  heredity,  selection, 
differentiation,  and  survival.11  Neither  do  we  question 
that  such  explanations,  in  their  larger  bearing,  are 
both  interesting  and  important,  nor,  in  the  same  ampli- 
fied meaning,  that  these  speculations  are  based  on  an 
element  of  truth  indicating  an  intimate  mutuality  and 
relation  among  all  the  facts  of  life  and  nature.  The 
subject  is  one  which  has  been  so  often  and  so  fully 
considered  that  it  is  sufficient  here  merely  to  suggest 
these  theories  with  qualified  adhesion  to  their  scientific 
value,  and  to  point  out,  what  is  important  for  our 
present  purpose,  that  this  immobilism  of  social  phen- 
omena, to  the  extent  that  such  phenomena  are  held 

7  Derivation  of  language  by  reference  to  a  physical  basis  is  an  interest- 
ing illustration  of  the  same  idea.     Jus,  to  take  an  example  in  legal 
terminology,  is  thought  to  be  traceable  to  the  Aryan  root  Yu,  meaning 
to  bind  or  join  together.     See  Jhering,  "Geist  d.  rom.  Rechts,"  i,  218 
(6th  ed.  1907);   and  contra  Breal  in  Nouv.  Rev.  Hist.  vol.  vii  (1883), 
625. 

8  Cf.  Vico,  ''Scienza  nuova";  cf.  del  Vecchio,  "Formal  Bases  of  Law," 
pp.  27  seq. 

sGrasserie,  "Principes  sociologiques  du  droit  civil,"  Paris,  1906;  "Prin- 
cipes  sociologiques  du  droit  public,"  Paris,  1911,  p.  13. 

1(>  Cf.  Kuhlenbeck,  "Natiirliche  Grundlagen  des  Rechts  und  der 
Politik." 

11  In  this  connection,  see,  for  an  application  of  ideas  of  organic  life  to 
the  social  composition,  Schaffle,  "Bau  und  Leben  des  sozialen  Korpers"; 
Spencer,  "Principles  of  Sociology";  Espinas,  "Les  Societes  animales," 
p.  128;  Demoor,  Massart,  and  Vandervelde,  "Evolution  by  Atrophy," 
(Mrs.  Mitchell's  tr.),  N.  Y.,  1899,  pp.  7  seq. 


xlvi  EDITORIAL  PREFACE 

within  its  iron  grasp,  holds  in  check  also  the  legislator, 
bending  his  will  to  the  prevailing  recoil  of  life,  or  break- 
ing it  when  it  stands  in  opposition  to  its  superior  force.12 

2.  Again,  the  attempt  has  been  made,  not  simply 
to  explain  legal  phenomena  on  the  basis  of  uncon- 
scious nature,  but  to  evaluate  them  by  nature,  predicat- 
ing of  legal  ordinances  and  legal  institutions,  the  quality 
of  good  or  bad,  as  they  conform,  or  fail  to  conform, 
to  the  natural  order  of  things.13 

It  is  clear  that  the  law  to  be  workable  must  recognize 
the  order  of  nature  in  delimiting  rights  and  duties,  lib- 
erties and  powers,  and  capacities  and  incapacities.  To 
invest  an  infant  with  regal  power,  while  an  important 
ceremony  for  continuing  hereditary  succession,  is  of  no 
significance  otherwise  at  the  moment.  Legal  relations 
to  a  very  considerable  extent  are  fashioned  by  the  pat- 
tern of  successfully  asserted  natural  wants,  capacities, 
and  conditions  of  life.  This  appears  plainly  in  all  legal 
institutions  and  especially  in  a  direct  way  in  the  field 
of  the  law  of  persons.14  The  various  forms  of  kinship 
relation,  marriage  restrictions,  family,  clan,  and  tribal 
duties  —  matriarchy,  patriarchy,  exogamy,  endogamy, 
the  levirate,  patria  potestas,  agnation,  perpetual 

>'  Incidentally,  this  point  of  view  has  the  juristic  mission  of  invalidat- 
ing the  imperative  theory  of  law  in  its  application  even  to  civilized 
societies.  Cf.  Maine,  "Early  History  of  Institutions,"  Lects.  12,  13; 
Bryce,  "Studies  in  History  and  Jurisprudence,"  ii,  44;  Salmond,  "Juris- 
prudence," 3d  ed.,  pp.  48  seq. 

18 Thus,  from  this  standpoint,  Aristotle  recognized  a  class  of  slaves 
who  were  such  by  nature.  "That  being  who  by  nature  is  nothing  of 
himself,  but  wholly  another's,  and  is  a  man  is  a  slave  by  nature;  and 
that  man  who  is  the  property  of  another  is  his  mere  chattel,  though  he 
continues  a  man":  "Politics,"  cap.  iv,  1254a  seq. 

"Cf.  Dig.  1,  1;  1,  5,  14;  1,  5,  24;  1,  7,  1;  1,  8,  2;  et  passim.  Thus, 
it  provided  (Dig.  1,  7,  15,  3) :  "Moreover,  a  man  ought  not  to  arrogate 
someone  else's  freedman,  nor  a  person  who  is  older  than  himself;  as  (16 
h.t.)  the  adoptive  relation  is  only  allowed  between  those  persons  between 
whom  the  natural  relation  might  by  possibility  have  existed."  There- 
fore, Cicero  says,  adoption  of  an  older  person  is  not  only  "contra  fas" 
but  "contra  naturam." 


THE  LEGISLATIVE  FUNCTION          xlvii 

tutelage,  clan  fraternity  —  together  with  their  modern 
developments  no  doubt  found  their  earliest  suggestion 
in  a  rita  discoverable,  or  thought  to  be  discoverable,  in 
external  nature. 

Process  of  time  has  materially  altered  the  interpre- 
tation of  nature,  and  on  individual  questions,  such,  for 
example,  as  that  of  human  servitude,  conflicting  ideas 
of  natural  reason  have  sprung  up;  but  the  fundamental 
thought  of  the  ancients  (apart  from  religious  commands 
and  economic  considerations  which  must  have  an  explana- 
tion of  their  own),  that  restrictions  upon  liberty  in  the 
field  of  personal  relations  have  an  objective  natural 
basis,  remains  valid  into  the  present  day.15  The  varieties 
of  matrimonial  regime,  disabilities  of  minors  and  married 
women,  guardianship,  support  statutes,  and  the  like, 
are  patently  based  on  natural  incapacities,  and  natural 
duties,  or  powers. 

In  this  direction,  however,  some  fanciful  explanations 
have  appeared  which  attempt  to  explain  or  to  criticize 
the  rules  and  institutions  of  positive  law  by  way  of 
analogy  with,  or  description  of,  the  phenomena  of  the 
external  world.16  The  facts  of  nature  cannot  be  ignored, 

lsThis  objective  basis  of  human  relations  represents  the  classical 
concept  of  natural  law.  See  Geny,  "Science  et  technique  en  droit  prive 
positif,"  ii,  274. 

14  Pythagoras  furnishes  one  of  the  earliest  examples.  According 
to  him  justice  is  the  equally  equal  number.  Various  interpretations 
have  been  given  of  this  formula,  and  numerous  attempts  made  to  select 
the  specific  number  intended.  In  passing,  one  more  solution  may  be 
here  recorded.  The  magic  number  symbolizing  justice  may  well  be 
the  digit  9,  which  will  be  found,  by  the  various  manipulations  to  which 
it  submits,  always  to  result  in  itself.  Thus  1+2+3+4+5+6+ 
7  +  8+9=  4(+)5=  9.  Again  9  +  9=  1  (+)8=  9.  And  9X9  = 
8(+)l  =  9.  Lastly,  progressive  multiplication  of  the  digits  (1X2X3, 
etc.),  and  final  multiplication  or  addition  of  the  result,  gives  the  same 
answer.  Cf.  Berolzheimer ,  "The  World's  Legal  Philosophies"  (Mrs. 
Jastrow's  tr.),  pp.  52  seq. 

Illustrative  of  the  proposition  under  consideration,  it  was  said  by 
Comstock,  J.  in  Kimberley  et  al  v.  Patchin,  19  N.  Y.  330:  "No  person 
can  be  said  to  own  a  horse  or  a  picture  unless  he  is  able  to  identify  the 


xlviii  EDITORIAL  PREFACE 

but  it  is  always  a  token  of  an  immature  legal  develop- 
ment when  the  juridical  sphere  is  dominated  by  or 
confused  with  other  fields  of  thought.17  Juridical  law  is 
autonomous,  and  as  a  human  institution  designed  for 
regulation  of  human  relations,  it  cannot  be  governed 
by  nature  or  external  facts  any  further  than  these  facts 
are  themselves  manifested  in  legal  relations. 

The  last  stronghold  of  the  influence  of  alien  fields  of 
thought  upon  the  making  and  application  of  legal  rules 
is  the  domain  of  the  ancient  formal  sciences,  logic,18 

chattel  or  specify  what  horse  or  what  picture  belongs  to  him.  It  is  not 
only  legally  but  logically  impossible  to  hold  property  in  such  things 
unless  they  are  ascertained  and  distinguished  from  all  other  things." 
This  rule,  the  court  says,  may  be  "fitly  called  a  rule  of  reason  and  logic." 

The  concept  of  equivalence  taken  from  nature  has  been  a  very  impor- 
tant factor  in  the  construction  of  legal  rules.  A  complete  investigation 
of  this  idea  would  be  interesting  and  valuable.  A  single  instance  may 
be  tendered.  In  the  old  common  law  an  instrument  under  seal  could 
only  be  discharged  by  a  like  instrument.  Performance  did  not  suffice 
(Leake,  Dig.  Con.  877). 

A  recent  writer  arrives  at  some  remarkable  conclusions  based  on 
natural  law;  e.g.  that  a  foetus  is  owned  by  the  mother  and  that  the  law 
has  no  control  in  the  matter  until  it  becomes  a  legal  subject:  Poche, 
"Die  Stellung  des  Kindes  gegeniiber  den  Eltern  vom  Standpunkte  des 
Naturrechts,"  Berlin,  1907. 

A  further  illustration  of  the  text  is  furnished  by  descent  per  stirpes. 
See  Kohler's  description  of  "Stammteilung"  in  his  "Lehrbuch  der  Rechts- 
philosophie,"  135.  For  a  variety  of  other  examples  showing  that  natural 
law  was  regarded  by  Roman  jurists  as  a  part  of  positive  law,  see  Kor- 
kunov,  "General  Theory  of  Law,"  123  seq. 

"  The  confusion  in  early  codes  of  regulations  of  what,  in  a  later 
period,  are  called  liberties,  with  duties,  has  often  been  pointed  out. 
See,  particularly,  the  Pentateuch,  Code  of  Manu,  and  the  Koran.  Cf. 
Dig.  1,  2,  8,  et  seq.  The  present-day  tendency  seems  again  to  be  in 
the  direction  of  narrowing  the  field  of  liberty.  This  tendency  may  be 
expected  to  increase  to  the  extent  that  modern  society  inclines  toward 
the  solidarity  of  primitive  ages.  The  psychologic  basis  of  this  movement 
will,  of  course,  be  entirely  different  from  that  which  actuated  primitive 
man.  The  primitive  "law  of  participation"  which  had  a  mystical 
quality  which  ignored  the  logical  rule  of  contradiction,  will  be  replaced 
by  a  material  law  of  participation  founded  on  economic  concepts.  Cf. 
L'evy-Bruhl,  "Les  fonctions  mentales  dans  les  societes  inferieures,"  Paris 
1910,  pp.  68  seq.,  425. 

18  There  is  another  abuse  of  logic  which  is  as  objectionable  as  the  kind 
above  pointed  out.  It  consists  in  the  over-refinement  of  distinctions 
to  a  point  where  the  law  in  its  system  becomes  too  esoteric  even  for  the 


THE  LEGISLATIVE  FUNCTION  xlix 

mathematics,  and  mechanics.  The  maxim  that  every 
beginning  or  change  must  have  a  cause  is  comparable 
to  the  rule  of  no  liability  without  fault.  The  rule  that 
something  cannot  come  from  nothing  has  its  counter- 
part in  the  doctrine  that  one  cannot  transfer  more  than 
he  owns.  The  law  of  excluded  middle,  that  every- 
thing either  must  be  or  not  be,  which  presents  sufficient 
opportunities  even  in  the  field  of  logic  for  misapplication, 
as  every  undergraduate  knows,  has  been  carried  over 
into  many  rules  of  law.  In  fact,  the  entire  field  of 
common  law  is  one  of  excluded  middle. 

The  Euclidean  mathematics  and  the  Aristotelean 
logic  now  appear  to  be  in  discredit,  but  in  an  earlier 
generation  they  doubtless  have  exercised  an  important 
part,  in  the  manner  suggested,  in  the  construction  of 
juridical  rules  by  way  of  analogy  and  description.  The 
difficulty  of  their  employment  in  the  law  lies  first,  in 
the  narrowness  of  their  operation,  and  second,  in  a 
difference  of  objects  to  be  attained  by  these  formal 
sciences,  on  one  hand,  and  the  law,  on  the  other.  This 
may  be  illustrated  by  the  fact  that  where  in  logic  there 
are  two  possible  alternatives,  three  will  be  found  in 
mathematics,  and  an  indefinite  number  in  jural  relations.19 

3.  In  the  effort  to  explain  legal  institutions  by 
reason  a  purely  deductive  position  is  taken.  Thus  as 
del  Vecchio  puts  it,  "the  formal  concept  of  law  is  implied 
in  the  knowledge  of  any  juridical  fact  whatso- 
ever" .  .  .  ,  it  "is  not  created  by  the  fact  in 

learned.  The  case  system  of  law  lends  itself  especially  to  this  tendency, 
where  distinctions  urged  by  the  necessities  of  counsel  have  in  some  fields 
reached  the  point  that  logical  generalization  is  impossible,  and  each 
case,  in  effect,  in  that  field,  is  a  general  rule  of  law.  See,  for  an  example 
of  this,  Calumet  and  Chicago  Canal  and  Dock  Company  v.  Conkling,  273 
111.  318. 

19  The  necessity  of  the  deductive  method  for  making  practical  and  com- 
prehensible the  data  of  legal  science  is,  of  course,  admitted.  The  point 
under  discussion  will  not  be  confused  with  that  question.  Cf.  Cohen, 
"The  Place  of  Logic  in  the  Law,"  19  Harvard  Law  Review  622  seq. 


1  EDITORIAL  PREFACE 

which  it  attains  concrete  existence."20  The  attitude 
here  represented  is  entirely  unhistorical,  and,  in  the 
main,  unfruitful  for  legislative  objects.  It  may  well 
be  that  mathematical  or  logical  form  constitutes  a 
prius,  but  it  follows,  by  no  means,  that  the  content  of 
these  forms  is  determined  by  preexistence  of  form. 
It  is  conceivable  that  organic  life  may  exist  without 
the  social  phenomenon  of  law,  and  to  assert  under  such 
conditions  the  logical  priority  of  law,  requires  the  asser- 
tion equally,  for  the  sake  of  consistency,  of  all  other 
possible  relations  and  conditions.21 

Law  is  not  a  supernatural  product  or  an  issue  of  pure 
reason;  it  is  not  even  the  mandate  of  a  sovereign,  or  the 
will  of  the  people.  We  shall  not  here  add  another 
effort  to  hundreds  of  attempts  to  define  the  law22; 
but  we  urge  with  considerable  confidence  that  the 
standard  of  intellectualism  unaided  by  experience,  at 
one  pole,  or  fortified  (by  rare  possibility)  by  intuitional 
insight,  at  the  other,  can  never  become  a  profitable 
basis  of  action  for  the  legislator;  and  that  such  a  pro- 
cedure can  have  no  beneficial  practical  issue  except 
on  the  basis  of  disguised  motivation.23 

20  "Formal  Bases  of  Law,"  cap.  x. 

n  The  objection  of  de  Maistre  quoted  by  del  Vecchio  (op.  cit.  p.  117) 
and  said  by  him  (del  Vecchio)  to  rest  on  an  old  sophism,  has  all  the 
appearance,  although  in  left-handed  style,  of  a  complete  answer  to  the 
attempt  to  make  a  universal  of  the  concept  law.  De  Maistre  says: 
"I  have  seen  in  my  life,  Spaniards,  Italians,  and  Russians,  and  I  even 
know,  thanks  to  Montesquieu,  that  there  are  Persians,  but  as  to  man, 
I  declare  that  I  have  never  come  across  one  in  my  life.  If  he  exists,  I 
don't  know  it." 

24  For  collections  of  definitions,  see  Riimelin,  "Eine  Definition  des 
Rechts";  Baumstarck,  "Was  ist  das  Recht?";  Holland,  "Jurisprudence" 
llth  ed.,  pp.  20,  43;  Korkunov,  "General  Theory  of  Law,"  (Hastings' 
tr.)  pp.  79  seq.;  Trendelenburg,  "Die  Definition  des  Rechts";  Pound, 
"Theories  of  Law,"  Yale  Law  Journal  (Dec.  1912). 

*'  Berolzheimer  has  pointed  out  the  great  social  and  political  impor- 
tance of  this  principle,  giving  credit  for  priority  of  statement  to  Georg 
Adler,  "Die  Bedeutung  der  Illusionen  fur  Politik  und  soziales  Leben," 
Jena,  1904  —  "The  World's  Legal  Philosophies"  (Mrs.  Jastrow's  tr.), 
p.  xliv.  It  may  be  suggested  that  the  same  idea  is  universal  in  nature, 


THE  LEGISLATIVE  FUNCTION  li 

That  illusory  ideas  and  programs  scientifically  un- 
tenable are  able  very  frequently  to  produce  results  in 
the  world  which  are,  or  at  least  appear  to  be,  valuable 
in  the  light  of  finite  wisdom  has  often  been  manifested. 
It  was  the  deductive  method  with  its  theory  of  per- 
sonality sprung  from  the  virgin  fountain  of  pure  reason 
which  served  to  free  the  State  from  the  Church,  estab- 
lished a  theoretical  equality  among  States,  and  gave  a 
philosophical  tone  to  the  eighteenth  century  declaration 
of  "rights  of  man"  embalmed  in  political  documents 
of  the  age.  The  after-effects  are  clearly  visible  at  the 
present  moment.  These  ideas  did  not  take  and  retain 
hold  in  the  political  and  economic  life  of  the  German 
States  as  in  the  Latin  countries  and  in  Anglo-America, 
and  the  result  has  been  translated  into  what  appears  to 
be  a  contest  for  commercial  supremacy  which  is  now  in  the 
process  of  arbitration  by  the  most  ancient  of  courts  —  the 
Supreme  Court  of  War.24  The  role  which  these  concepts 
have  played  in  the  private  law  of  Common  Law  countries, 
and  the  difficulties  which  have  been  encountered  in  a  con- 
ceptual change  of  front  from  individualism  to  socializa- 
tion of  legal  institutions,  a  movement  which  is  only  in 
the  beginning  stages,  are  chapters  in  a  narrative  which 
in  recent  years  has  been  made  quite  familiar.25 

as  may  be  seen  for  example  in  the  inversion  of  the  image  on  the  retina, 
the  apparent  motion  of  the  sun  around  the  earth,  refraction  of  light, 
protective  coloring  of  plants  and  animals,  etc.  Deportment,  morals, 
and  fashion  are  so  completely  saturated  with  this  principle  that  it  may 
be  said  that  they  have  no  other  rationale.  Cf.  also,  Dernburg,  "Die 
Phantasie  im  Rechte,"  2d  ed.,  Berlin  1894. 

**  "That  ideas  are  more  effective  and  important  agencies  in  human 
affairs  than  events  however  massive  —  that  the  Justice  of  Plato,  and 
the  Law  of  Nature  and  of  Reason  of  the  Stoics,  will  continue  to  influence 
men's  thoughts  and  actions  long  after  all  Pragmatic  Sanctions  and 
Golden  Bulls  are  dusty  and  forgotten  —  this  is  a  conclusion  willingly 
embraced  by  most  philosophei s,  and  by  some  historians."  —  Hollands, 
"Nature,  Reason,  and  the  Limits  of  State  Activity,"  25  Phil.  Rev.  645. 

*6In  America,  especially  by  Pound.  See  his  "The  Scope  and  Pur- 
pose of  Sociological  Jurisprudence,"  Harvard  Law  Review,  1911-12, 
among  numerous  other  writings  of  the  same  author. 


Hi  EDITORIAL  PREFACE 

That  the  attempt  to  explain  the  edifice  of  law  by 
reason  is  one  of  the  numerous  variants  of  natural  law 
also  hardly  needs  to  be  mentioned.26 

It  is  assumed,  furthermore,  by  the  point  of  view  under 
inspection,  that  history  is  the  more  or  less  perfect  devel- 
opment of  metaphysical  purpose,  of  idea,27  of  an  innate 
quality  of  rationality  in  human  nature,  or  of  a  mechani- 
cal expression  of  social  logic,28  and  it  is  thought  that 
the  chief  function  of  historical  investigation  is  to  dem- 
onstrate and  amplify  the  deductive  or  ideal  process. 

4.  It  remains  to  speak  of  the  evaluation  of  legal  insti- 
tutions by  reason.  The  processes  of  criticism  and  expla- 
nation are  very  similar.  Because  of  the  different  and 
often  conflicting  philosophical  attachments  which  have 
grown  up  as  the  problems  of  society  are  considered 
from  one  angle  or  the  other,  and  because  the  method 
of  explanation,  as  we  have  found  it  convenient  to  pursue 
this  discussion,  relates  concrete  reality  with  a  large 
outline  of  life  —  with  the  oscillations  of  centuries  from 
the  point  of  view  of  external  nature,  or  with  a  govern- 
ing principle  in  the  sphere  of  reason,  —  the  method  of 
criticism  according  to  reason  is  given  a  separate  place. 

This  method  differs  chiefly  from  the  rationalistic 
method  of  explanation  in  that  it  descends  to  details. 
It  passes  from  the  domain  of  ideas  and  abstractions 

26  See,  for  the  applications  of  natural  law  based  on  "common  sense" 
in  the  creation  of  extra-constitutional  limitations,  protection  of  vested 
rights,  liberty  of  contract,  etc.,  Raines,  "The  Law  of  Nature  in  State 
and  Federal  Judicial  Decisions,"  25  Yale  Law  Jour.  617-657. 

*7  Hegel,  "Grundlinien  der  Philosophic  des  Rechts,"  pp.  18  seq.; 
"Phanomenologie  des  Geistes."  Cf.  from  another  camp  in  legal  phil- 
osophy, del  Vecchio,  "Formal  Bases  of  Law,"  p.  326:  "we  should  look 
upon  history,  in  its  organic  character,  as  the  unfolding  of  an  implied 
purpose.  In  this  sense,  the  series  of  particular  positive  laws  appear  to 
us  as  unified  by  the  tendency  toward  the  development  of  natural  law. 
This  tendency  grasped  by  the  mind  a  priori  as  an  absolute  and  universal 
necessity,  superior  and  anterior  to  any  application  in  experience,  develops 
in  it  through  a  long  and  laborious  historical  gestation." 

*«  Tarde,  "Les  Transformations  du  droit,"  cap.  vii,  7th  ed.,  Paris,  1912. 


THE  LEGISLATIVE  FUNCTION  liii 

to  a  world  of  concrete  things.  It  is  not  sufficient  for 
the  purpose  that  legal  phenomena  be  encompassed 
under  a  bloodless  concept,  but  they  must  be  practically 
weighed  and  measured  and  rated  according  to  their 
worth.  But  the  process  of  transition  is  full  of  pain 
and  perils.  In  passing  from  the  sphere  of  idea  to  the 
world  of  actual  things  an  abridged  and  unfathomable 
gulf  must  be  entered.  The  journey  may  mean  forget- 
fulness,  and  emergence  new  birth.  Therefore,  the 
attempt  to  evaluate  legal  notions  and  practices  by  the 
aid  of  reason  alone,  is  likely  to  become  a  subjective 
method  which  may  claim  a  far-removed  philosophical 
ancestry,  but  which  has  lost  its  metaphysical  documents 
of  title.29 

There  are  two  leading  logical  varieties  in  modern 
times  of  the  rationalistic  method,  reducible  again  to 
many  subdivisions.  The  first  is  the  eighteenth  cen- 
tury type  of  natural  law  distinguished  from  other  types 
by  the  effort  to  discover  fixed  concrete  rule  of  law 
superior  to  positive  law.30  The  second  variety  is  one 
which  has  an  important  and  arguable  philosophical 
basis  that  has  been  made  familiar  by  the  phrase  "law 
with  a  variable  content."31  However,  the  topic  of 

»  As,  for  example,  Boistel,  "Cours  de  droit  naturel,"  Paris,  1870,  pp. 
28  seq.,  who  allies  himself  with  Rosmini,  and  with  general  ideas  which 
go  back  to  Plato.  Q.Gtny,  "Science  et  technique  en  droit  privepositif," 
seconde  partie,  Pans,  1915,  pp.  280  seq.  See  also,  Bergbohm,  "Juris- 
prudenz  und  Rechtsphilosophie,"  i,  p.  35. 

30  Based  usually  on  a  deductive  principle  gratuitously  or  fancifully 
derived,  as  is  the  case  even  with  Boistel,  who  starts  from  "the  inviola- 
bility of  human  personality."  We  must  here  record  our  failure  to 
understand  why  the  life  principle  extending  even  to  crystals  has  not  been 
recognized  instead  of  drawing  the  limits  about  human  beings,  many  of 
whom,  in  the  lower  stages  at  least,  are  hardly  superior  as  social  types 
to  anthropoids. 

31 M.  R.  Cohen,  "Jus  Naturale  Redivivum,"  25  Philosophical 
Review  761;  Stammler,  "Die  Lehre  von  dem  Richtigen  Rechte,"  Berlin, 
1902,  pp.  137  seq.  (Vol.  viii  in  this  series.) 

According  to  del  Vecchio  the  concept  of  law  does  not  involve  a  material 
content,  since  that  would  destroy  the  apodictic  validity  of  the  principle 


liv  EDITORIAL  PREFACE 

natural  law  is  one  of  such  amplitude,  and,  also,  one 
made  so  familiar  in  all  literatures32  that  our  present 
purpose  is  satisfied  in  noting  this  intellectual  phenomenon 
in  its  proper  order  in  this  discussion,  without  any  effort 
further  to  indicate  its  influence. 

Summing  up,  the  attitude  of  the  whole  period  ante- 
dating the  rise  of  historical  studies  was,  in  general,  to 
regard  all  phenomena  of  social  life  as  governed  in  their 
existence  or  their  worth  by  laws  readily  discoverable 
in  the  bosom  of  external  nature,  or  in  the  depths  of  the 
human  mind.  Exact  information  was  entirely  lacking 
touching  either  the  causes  or  effects  upon  social  life 
of  legal  phenomena.  The  facts  were  assumed,  and 
generalizations  were  freely  erected  on  these  insecure 
pedestals.33  Theories  of  law,  of  sovereignty,  and  of 
society  contested  with  rival  theories.  States  were 
overthrown,  constitutions  were  born,  and  economic, 
legal,  and  political  creeds  blossomed,  and  bore  their 
fruits  in  this  cavernous  soil. 

So  far  as  there  is  implied  in  these  statements  a  mis- 
guided or  disguised  motivation,  there  was  not,  however, 
anything  unreal  in  this  process  of  social  upheaval.  The 
clash  of  armies,  the  rise  and  fall  of  oligarchies  and 
tyrants,  the  flux  and  reflux  of  commerce,  and  the  chang- 
ing periods  of  economic  dominance  and  dependence 
were  very  real  facts.  While  the  larger  political  and 

of  law  which  involves  only  "the  form  of  the  idea  of  law,  or  that  which 
necessarily  appears  in  every  juridical  phenomenon."  Law  is,  therefore, 
defined  as  "the  objective  coordination  of  possible  acts  among  men 
according  to  an  ethical  principle  *  *  *  "  —  "Formal  Bases  of 
Law,"  pp.  217  seq. 

82  See,  especially,  Bergbohm,  "Jurisprudenz  und  Rechtsphilosophie," 
i,  Leipzig,  1902,  pp.  12  seq.  331  seq.  (for  England  and  America) ;  Ritchie, 
"Natural  Rights,"  2d  ed.,  London,  1903;  Pulszky,  "Theory  of  Law 
and  Civil  Society,"  London,  1888. 

»'  Cf.  Comte  (Charles),  "Traite  de  la  legislation,"  vol.  i,  p.  330.  Buckle 
shows  this  in  detail:  "History  of  Civilization  in  England,"  vol.  i,  pt.  ii, 
cap.  xiii. 


THE  LEGISLATIVE  FUNCTION  Iv 

economic  movements  of  the  world  have  invariably 
required,  and  been  supported  by  programs,  in  which 
the  event  has  always  disclosed  that  the  results  attained 
have  been  miscalculated,34  the  illusion  of  purpose35 
when  translated  into  fact  became  as  tough  a  datum  of 
experience  as  if  fortified  by  an  unassailable  metaphysic. 

The  rise  of  historical  studies  initiated  a  new  method 
of  thought.  The  purely  deductive  process  which  with- 
out experience  was  thought  sufficient  to  account  for  the 
facts  of  social  life,  and  which,  likewise,  assumed  to  be 
able  to  establish  standards  of  value  without  investigating 
these  facts,  was  replaced  by  the  inductive  procedure 
of  history.  This  movement  was  all-embracing  in  scope; 
it  affected  not  simply  the  social  sciences  but  pervaded 
the  whole  domain  of  knowledge.  Within  the  Historical 
School  itself,  the  metaphysical  element  which  inevi- 
tably enters  every  movement  of  large  proportions  to  give 
it  that  rationalistic  basis  which  seems  to  be  demanded 
by  the  human  mind,  soon  attempted  to  rise  from  the 
data  of  Roman  law  to  a  world-view  of  legal  institutions, 
in  a  manner,  as  has  often  been  pointed  out,36  which 
resembled  the  deductive  method  of  natural  law. 

The  historical  movement  was  quickly  succeeded  by 
positivism,  on  one  hand,  and  evolutionary  pantheism 
on  the  other.  With  the  survival  of  an  historically  reno- 
vated form  of  Kantianism  there  was  reached  the  stage 

34  A  sentence  of  Kohler's  is  in  point:  "the  ambition  of  a -half-bar- 
barous Macedonian  demolished  the  Persian  empire,  and  a  flood  of 
Oriental  culture  poured  out  over  the  Occident."  —  "Die  Entwicklung 
im  Recht,"  xiv  Griinhuts  Z.  410  seq. 

»  The  inherent  difficulty  of  forecasting,  or  even  of  explaining  in  social 
relations,  the  effect  of  conscious  attempts  to  alter  the  course  of  human 
action  is  intensified  if  no  effort  is  made  to  employ  the  various  available 
sources  of  knowledge  which  deal  with  social  facts;  and  "whatever 
social  laws  we  may  be  able  to  discover  will  always  be  marked  by  a 
character  of  contingency  much  greater  than  in  the  case  of  other  scien- 
tific laws."  —  Tanon,  "L'Evolution  du  droit,"  p.  65. 

«  Cf.  Bergbohm,  "Jurisprudenz  und  Rechtsphilosophie,"  i,  pp.  480 
seq. 


Ivi  EDITORIAL  PREFACE 

represented  at  this  moment  in  the  field  of  legal  philos- 
ophy, by  two  forms  of  realistic  idealism  —  Neo-Hegelian 
and  Neo-Kantian  —  and  the  various  other  types  of 
idealism  and  realism. 

So  far  as  concerns  legislative  method  there  appears 
to  be  entire  unanimity  among  all  legal  philosophers 
on  the  acceptance  of  experience.  Differences  will  be 
encountered  only  in  matters  of  detail  on  the  procedure, 
and  in  the  interpretation,  of  the  results  of  experience. 
This  fact  is  one  of  very  great  importance  for  the  future 
of  social  institutions,  and  it  may  be  expected  when  the 
profession  of  law  arises  to  a  "Weltanschauung,"  that  the 
law  itself,  aided  by  the  suggestion  of  new  social  ideas, 
will  commence  a  development  comparable  to  the  progress 
seen  on  every  hand  in  the  domain  of  the  natural  sciences. 

The  possibilities  of  human  endeavor  if  not  boundless 
have  not  been  bounded,  and  the  future  holds  not  only 
the  hope,  but  the  reasonable  promise  of  the  greatest 
expansion  of  man's  material  culture,  development  of 
human  power  over  the  forces  of  nature,  unfoldment 
of  new  wants  and  activities,  abolition  of  all  metaphysical 
restraints  on  freedom  of  thought  and  action,  progressive 
diminution  of  poverty  and  disease,  and  at  last,  attain- 
ment of  a  stage  where  material  necessity  has  been  effectu- 
ally conquered  and  freedom  actualized  in  its  highest  form. 

So  much,  at  least,  is  conceivable  without  enlarging 
the  horizon  of  the  factors  of  knowledge.  From  the 
standpoint  of  society  as  we  now  know  it,  this  program 
it  must  be  acknowledged  has  an  Utopian  quality;  but 
yet  it  cannot  be  denied  that  the  first  steps  have  already 
been  taken  and  that  something  of  the  kind  indicated 
is  the  hope  and  wish  of  the  average  social  philosopher. 
The  fact  also  must  be  admitted  that  the  process  of 
realization  must  be  one  of  centuries,  of  many  centuries 
perhaps,  if  it  is  not  even  arrested  by  a  .social  or  natural 


THE  LEGISLATIVE  FUNCTION  Ivii 

cataclysm.  Our  interpretations  of  life  will  differ,  and 
there  will  remain  contests  as  to  what  is  desirable,  on 
one  hand,  or  feasible  on  the  other,  which  cannot  be 
arbitrated;  but  there  is  still  a  large  field  of  problems 
where  substantial  unanimity  is  attainable. 

In  attaining  whatever  may  be  thought  to  be  the 
ideal  form  of  society,  it  cannot  be  too  often  emphasized 
that  there  are  certain  rigid  limitations  existing  in  the 
nature  of  society  itself  upon  the  efficacy  of  law.  We 
cannot  legislate  at  will  an  ideal  condition.  The  law 
is  a  dead  letter  unless  "it  works";  and  it  will  not  work 
unless  and  until  it  is  adjusted  to  the  material  and  psychic 
conditions  of  the  society  in  which  it  is  to  operate.37 
It  is  a  truly  remarkable  situation  that  with  the  greatest 
development  of  legal  learning  there  is  the  scantiest 
knowledge  of  the  actual  operation  of  legal  rules.  Law- 
yers, lawmakers,  and  law  teachers  are  occupied  with 
the  conceptual  problems  produced  in  great  abundance 
by  the  creation  of  legal  rules,  but,  strangely  enough, 
they  do  not  know  how  these  rules  are  being  realized,  if 
at  all,  in  actual  life.38 

II.  It  may  be  useful  to  indicate  briefly  some  of  the 
legislative  problems  as  to  which  it  is  essential  for  the 
lawmaker  to  take  a  definite  position. 

First,  what  of  the  equilibration  of  interests  of  which 
much  is  said  in  the  first  division  of  this  book?  Why 
should  interests  be  balanced  at  all?  Why  should  not 

"It  is  one  of  the  mosMmportant  constructive  proposals  made  by 
Pound,  to  investigate  "the  means  of  making  legal  rules  effective."  — 
"Scope  and  Purpose  of  Sociological  Jurisprudence."  25  Harvard  L. 
Rev.  514. 

3SEhrlich  has  been  one  of  the  foremost  Continental  writers  to  insist 
upon  the  importance  of  this  knowledge  of  the  actual  social  operation 
of  law.  See  his  "Grundlegung  der  Soziologie  des  Rechts,"  Leipzig, 
1913;  Manigk,  "Erforschung  des  lebenden  Rechts,"  xxx  Oest.  Zen- 
tralblatt  709.  A  valuable  reference  list  is  entered  in  Cosentini,  "La 
riforma  della  legislazione  civile"  (1911),  p.  285. 


Iviii  EDITORIAL  PREFACE 

the  legislator  (or  the  judge  when  creating  a  new  rule  of 
law)  resolutely  choose  the  better  or  the  best  among 
conflicting  interests?  Again,  what  is  the  better  or  the 
best,  and  what  is  the  standard? 

On  the  first  question,  Berolzheimer,  speaking  for 
himself,  if  not  for  his  school,  advocates  conscious  choice, 
where  choice  is  possible,  and  points  out  that  the  course 
of  legal  evolution  has  not  been  a  process  of  tight-rope 
walking,  and  that  interests  in  conflict  have  not  balanced, 
but  that  one  has  annihilated  the  other.  This  point 
of  view  recalls  again  what  in  this  period  of  turmoil, 
which  has  overtaken  nearly  every  quarter  of  the  globe, 
is  a  dominant  thought.  Are  struggle  and  force  and  con- 
quest with  all  that  they  imply  of  cruelty  and  bloodshed 
a  necessary  foundation  of  human  progress,  and  a  rule 
of  life?  And  what  shall  be  the  attitude  of  the  legis- 
lator on  these  questions  in  the  various  ways  that  they 
touch  the  legal  establishment?39 

What  position  is  to  be  taken  with  reference  to  mediate 
and  final  ends?  This  question  is  usually  of  importance 
also  in  legislative  technic  where  the  prevailing  practice 
tends  to  very  restricted  purposes.  Undoubtedly  this 
is  as  far  as  expediency  can  go,  but  this  admission  develops 
another  fact  of  great  importance  —  that  the  limited 
object  sought,  frequently  is  either  missed  or  surpassed 
in  a  heterogeneity  of  ends.  The  question  then  arises, 
whether  the  legislator  should  not  chart  his  course  more 
remotely  in  practice.  Such  a  solution,  however,  again 
involves  other  important  consequences.  The  path  of 
discretion  becomes  automatically  broader.  The  result 
is  agreeable  to  the  tendencies  of  "freie  Reehtsfindung," 
but  is  destructive  of  that  fixation  of  concrete  legal  rules 
which  is  widely  thought  to  be  desirable  in  modern  law. 

«  Cf.  Jhering,  "The  Struggle  for  Law"  (Lalor's  tr.),  2d  ed.,  Chicago, 
1915;  but  see,  Nasmyth,  "Social  Progress  and  the  Darwinian  Theory," 
N.  Y.,  1916. 


THE  LEGISLATIVE  FUNCTION  lix 

A  related  question  is  the  qualitative  and  quantitative 
relation  which  law  should  bear  to  social  evolution. 
History  has  furnished  its  own  solution.  Law  is  the 
laggard  behind  custom.  One  of  the  chief  purposes 
of  the  Sociological  School  of  thought  rests  on  this  fact; 
and  as  we  understand  the  proposal,  it  is  contended 
that  law  should  keep  abreast  of  the  march  of  social 
progress.40  It  is  clear  that  a  quality  of  flexibility  in 
legal  rules  which  will  permit  their  adjustment  to  chang- 
ing conditions  would  raise  difficulties  especially  with 
the  certainty  thought  to  be  desirable  in  legal  standards; 
and,  also,  there  are  spheres  of  law  where  uncertainty 
would  be  destructive  of  the  chief  purpose  of  any  rule 
whatsoever.  This  appears  most  clearly  in  the  field 
of  commercial  law,  where  the  certainty  of  the  rule  is 
more  important,  in  many  respects,  than  the  force  of 
compulsion  behind  it.  If  the  law  is  to  be  made  adjus- 
table to  the  facts  of  social  and  economic  evolution, 
the  principle  of  certainty  must  still  be  retained  in  those 
departments  where  it  is  more  essential,  for  the  larger 
purposes  of  the  law,  than  justice  in  individual  cases. 
At  any  rate,  the  distinction  is  one  which  the  legislator 
must  at  least  have  in  mind,  however  it  may  be  disposed 
of. 

What  solution  is  to  be  attempted  of  the  competing 
claims  among  individual,  class,  social,  and  State  interests? 
Shall  private  interests  when  in  conflict  with  social 
interests  always  give  way,  and  if  so  why?  It  is  true 
that  an  affirmative  answer  is  dogmatically  given  especi- 
ally by  thinkers  of  the  sociological  group,  but  some- 
thing more  than  a  dogmatic  answer  is  necessary  to 
eliminate  the  problem.  What  limitations  shall  be  drawn 
on  the  dominance  of  State  interests,  and  why? 

"One  leading  thinker,  of  the  neo-Hegelian  School,  has  even  claimed 
for  law  the  superior  mission  of  leading  the  way.  —  Kohler,  "Philosophy 
of  Law"  (Albrecht's  tr.)i  pp.  58  seq. 


Ix  EDITORIAL  PREFACE 

What  is  the  proper  scope  of  law  in  modern  society? 
What  influence,  if  any,  do  changing  economic  conditions 
have  in  the  consideration  of  the  question?  The  cen- 
tralization and  expansion  of  industrialism  within  recent 
years  have  brought  a  pronounced  change  in  the  scope 
of  law.  Liability  now  extends  beyond  the  concept 
of  fault  and  is  now  objectified  and  de-personalized  as 
one  of  the  ordinary  risks  of  business.  The  State  does 
not  any  longer  permit  an  employer  to  assume  all  risks 
of  negligence,  but  requires  positive  measures  which 
reduce  the  probability  of  risks  of  injuries.  The  sphere 
of  formal  liberty  has  been  reduced  in  a  variety  of  direc- 
tions to  a  kind  of  status.41  Regulations  of  building, 
sanitation,  and  (for  public  employees)  of  deportment, 
of  the  personal  use  of  narcotics,  of  hours  of  labor,  of 
methods  of  competition,  and  of  other  matters  in  a 
laissez  faire  regime  within  the  province  of  liberty,  have 
been  recast  on  the  models  of  the  most  ancient  codes. 
Price  and  trade  regulation  has  returned  to  the  pattern 
6f  the  Middle  Ages.  Not  only  has  the  sphere  of  formal 
liberty  —  what  in  loose  language  one  has  a  "right"  to 
do- — been  abridged,  but  an  entirely  new  concept  has 
been  introduced  by  modern  legislation  in  the  "right 
to  work,"  a  claim  of  the  individual  against  the  State 
itself.  Enough  has  been  said  to  show  that  the  scope 
of  law  is  not  stationary  any  more  than  the  rules  of  law. 

Should  legislation  be  intrusted  to  experts,  in  analogy 
to  the  learned  judiciary?  In  other  words,  should  the 
process  of  legislating  be  made  esoteric  as  is  the  case  with 
Anglo-American  case-law,  or  should  it  continue  to  be 
democratic,  and,  in  the  scientific  sense,  ineffective? 
Here,  again  the  solution  is  not  so  apparent  that  he  who 
runs  may  read. 

. «  Cf.  Sir  Frederick  Pollock's  note  (L)  to  Maine's  "Ancient  Law"; 
Dicey,  "Law  and  Public  Opinion,"  p.  283;  Pound,  "A  Feudal  Principle 
in  Modern  Law,"  25  Int.  J.  Eth.  22. 


THE  LEGISLATIVE  FUNCTION  Ixi 

Such  are  a  few  of  the  larger  problems  of  legislative 
policy;  and  the  mere  statement  of  them,  without  any 
attempt  at  solution,  is  enough  to  indicate  the  important 
sociological,  historical,  and  philosophical  soundings 
which  must  be  made  before  satisfactory  answers  may 
be  ventured. 

III.  This  leads  to  a  statement  in  a  very  summary  way, 
also,  of  some  of  the  present  defects  of  legislative  method. 

First,  it  is  assumed  that  any  normal  adult  is  com- 
petent to  legislate.  The  human  composition  of  our 
State  legislatures  in  average  intelligence  is  a  clamoring 
witness  of  this  childlike  belief;  but,  so  far  as  we  may 
intrude  our  views  in  a  discussion  not  intended  from 
a  controversial  point  of  view,  we  would  regard  it  as  fal- 
lacious to  think  that  a  legislature  of  academicians  would 
work  out  any  better  practical  results  in  the  present  state 
of  legislative  science.  There  is  yet  a  golden  mean. 

Another  capital  defect  is  the  preponderance  of  subjec- 
tivism. The  legislator  takes  for  his  standard  of  human 
conduct  his  own  limited  impressions  of  the  nature  of 
the  world  and  seeks  to  thrust  upon  an  incorrigible  flux 
of  social  evolution  his  own  subjective  views,  instead  of 
taking  the  world  itself  as  the  standard.  This  error 
is  in  part  neutralized  by  the  inertia  of  the  assembly; 
and  the  further  correction  comes,  at  last,  in  the  actual 
play  of  legal  phenomena.  Then,  and  then  only,  is  the 
objective  standard  realized. 

The  next  defect  is  that  of  ideality.  This  has  always 
been  one  of  the  most  conspicuous  shortcomings  of 
legislative  policy.  The  possible  is  commonly  disre- 
garded for  the  desirable,42  or,  more  accurately,  what  is 

«"I1  ne  suffit  pas  qu'une  reforme  soit  desiree;  il  faut  qu'elle  soit 
possible,  et  qu'on  emploie  des  moyens  propres  a  la  realiser."  —  Tanon, 
"L'Evolution  du  droit,"  Paris,  19H,  p.  199;  see,  also,  Vaccaro,  "Les 
Bases  sociologiques  du  droit  et  de  1'Etat,"  Paris,  1898,  p.  4&6. 


Ixii  EDITORIAL  PREFACE 

subjectively  found  desirable.  An  exaggerated  belief 
in  the  efficacy  of  legislation  assumes  perfect  receptivity 
of  the  governed  to  every  sort  of  legislative  mandate. 
What  requires  to  be  urged  against  this  mistaken  opti- 
mism is  that  human  nature  must  be  taken  as  it  is,  with 
all  its  harshness,  wilfulness,  egoism,  and  unreason  —  in 
short,  with  all  its  physiological  and  psychological  wants 
and  tendencies.  There  is  a  relation  between  the  efficacy 
of  legislation  and  human  wants.  What  is  not  assim- 
ilated within  the  life  of  a  people  cannot  have  the  force 
of  law.  Law,  therefore,  is  a  kind  of  organic  growth43 
which  may  be  affected  by  harmonious  or  inharmonious 
elements.  The  harmonious  elements  are  readily  assim- 
ilated and  accord  with  the  nature  of  the  organism;  the 
inharmonious  elements  are  either  cast  out,  remain  in- 
active, or  produce  a  pathological  condition  temporarily, 
and,  in  some  cases,  permanently,  obstructing  the  normal 
development  of  social  growth.44 

A  last  defect  in  legislative  method  which  is  in  part 
the  product  of  other  defects,  is  superficiality.  Anyone 
who  has  attempted  to  analyze  or  discover  the  plan  of 
reasoning  disclosed  or  undisclosed  of  a  group,  large  or 
small,  attempting  to  deal  with  a  normative  problem, 
cannot  fail  to  be  struck  by  the  vagueness,  shallowness, 
and  incongruity  which  usually  dominates  the  argu- 
ment. The  diversity  of  views  which  are  urged,  each 
highly  complex  in  itself,  and  the  extent  to  which 

«  In  this  lies,  as  it  would  seem,  the  real  strength  of  the  doctrine  of  the 
Historical  School,  and  again  from  another  point  of  outlook  of  the  school 
of  Krause,  ("System  der  Rechtsphilosophie,"  Leipzig,  1874,  pp.  431  seq.). 
See  the  published  presidential  address  of  Elihu  Root  before  the  Ameri- 
can Bar  Association,  Aug.  30,  1916:  "No  statute  can  ever  long  impose 
a  law  upon  [the  people]  which  they  do  not  assimilate,"  2  Am.  Bar  Assn. 
Journal  751. 

44  Perhaps  the  writer  should  here  reassert  that  the  use  of  language 
borrowed  from  physiology  or  biology  has  no  other  than  a  metaphorical 
meaning.  The  phenomena  of  society  are  sui  generis,  but  the  lack  of 
well  understood  scientific  terminology  invites  analogies  in  other  fields. 


THE  LEGISLATIVE  FUNCTION  Ixiii 

emotional  bias  enters,  often  make  it  difficult  to  look 
upon  the  resolutions  of  many  minds,  acting  in  the  same 
dialectic,  as  products  of  reason  in  any  proper  sense,  but 
rather  as  intuitional,  or,  perhaps,  unwilled,  phenomena 
brought  into  being  under  the  illusion  of  consciously 
selected  issues  of  the  mind. 

IV.  The  foregoing  discussion  brings  us  to  a  considera- 
tion of  the  method  and  materials  available  to  the  legis- 
lator, and  necessary  to  be  employed  to  escape  the  criti- 
cism above  raised. 

They  are  as  follows: 

1.  The  systematic  or  expository  method  must  be 
carried  out  to  a  point  of  practical  completion.  That  is 
to  say,  exact  data  must  be  gathered,  (a)  concerning 
the  situation  upon  which  legislation  is  to  operate;  (b) 
concerning  the  most  effective  measure  to  be  applied; 
(c)  and  the  effect  upon  the  particular  situation,45  and 
the  reaction  upon  other  social  habits  by  the  enforce- 
ment of  the  measure  selected.46 

In  this  direction,  the  legislator  may  find  a  working 
model  in  the  methods  of  boards  of  directors  of  successful 
corporations.  The  existence  now  in  a  number  of  states 
of  legislative  reference  bureaus  is  responsive  to  the 
thought,  which  is  coming  to  be  recognized  that  intelli- 
gent action  and  judgment,  even  in  matters  of  legisla- 
tion, demands  a  satisfactory  foundation  of  statistical 

"Prof.  Edward  A.  Ross  ("The  Principle  of  Anticipation,"  xxi  Am. 
J.  Soc.  577)  has  pointed  out  that  the  distinction  taken  in  legislation 
has  been  between  near  and  remote  consequences  by  way  of  an  analogy 
borrowed  from  physiology.  He  argues  that  any  established  policy 
which  affects  persons  favorably  or  unfavorably  will  be  anticipated  and 
will  modify  behavior;  and  that  the  social  scientist  and  legislator  must 
anticipate  the  anticipations. 

46  Failure  to  take  account  of  this  reaction  is  shown  in  the  actual 
social  operation  of  the  marriage  evasion  act  in  Illinois.  See  Bulletin 
of  Chicago  Legal  Society,  1916,  no.  2,  in  xi  Illinois  Law  Review, 
(October,  1916). 


Ixiv  EDITORIAL  PREFACE 

information.  The  possibilities  of  the  systematic  method 
are  of  the  greatest  importance,  and  it  is  not  unlikely, 
when  it  is  fully  developed,  and  becomes  a  regular  instru- 
ment of  legislative  action,  that  legislation  will  cease 
to  be  an  inferior  legal  product,  but  will  take  rank  equal, 
if  not  superior,  to  judicial  precedent.  That  the  present 
method  is  inefficient  and  unscientific  will  hardly  be 
denied,  and  that  the  legislative  function  must  be  raised 
to  a  higher  plane  of  dignity,  a  dignity  comparable  to 
that  of  the  courts,  in  order  that  it  may  satisfy  its 
theoretical  object,  is  obvious.  It  would,  however,  be 
a  mistake  to  assume  that  an  improvement  in  the 
human  factor  upon  which  legislation  depends  would 
of  itself  suffice.  If  the  method  itself  does  not  im- 
prove, the  good  character  of  the  lawmaker  will  not 
succeed  in  raising  legislation  from  its  present  unscientific 
level.47 

However,  the  statistical  method  while  indispensable 
is  not  self-sufficient,  in  the  narrow  sense  in  which  the 
term  "statistics"  is  here  used,  to  furnish  a  scientific 
basis  for  legislation. 

2.  The  historical  and  comparative  methods  are 
necessary  to  round  out  and  humanize  the  results  of 
statistical  inquiry.  This  implies  a  broader  kind  of 
statistics  based  on  legal  history,  comparative  law,  and 
legal  ethnology.  The  rigor  or  extent  of  this  program 
does  not  in  any  wise  detract  from  its  scientific  necessity ; 
nor  is  the  task  involved  in  this  demand  so  exacting  as 
to  be  unworkable. 

The  facts  of  human  life  are  not  detached  points  in 
space,  but  are  expressions  of  a  unified  process  the  spirit 
of  which  penetrates  the  realm  of  history,  giving  it  that 
rationality  frequently  discernible  only  after  long  periods 

«Cf.  J.  H.  McFarland,  "Why  Congress  is  Slow,"  Outlook,  vol.  113, 
no.  9.  p.  456. 


THE  LEGISLATIVE  FUNCTION  Ixv 

of  time,  and  that  configuration  which  makes  it  possible 
to  apprehend  it  as  a  thing  of  substance  and  continuity.48 
A  mere  accumulation  of  detached  particulars  does  not 
constitute  a  history. 

The  special  value  of  comparative  law  lies  in  its  power 
of  suggestion,  and  in  its  capacity  to  afford  vicarious 
experience. 

Legal  ethnology  has  the  function  of  making  possible 
restorations  of  the  missing  pages  of  history  especially 
in  the  earlier  periods;  and  it  is  also  a  powerful  auxiliary 
for  understanding  the  ethnic  soul,  and  for  affording 
reliable  criteria,  under  simpler  conditions  of  life,  of  the 
efficacy  of  legislation  in  precisely  those  fields  where 
there  is  not  available  the  required  statistical  informa- 
tion. 

It  is  conceded  here  that  under  scientific  observation, 
experiment  is  a  method  better  than  any  of  those  dis- 
cussed. This  has  been  the  favorite  resort  of  Anglo- 
America49;  but  experiment  has  not,  it  is  believed,  been 
adopted  as  a  method  under  the  condition  of  scientific^ 
observation,  and  the  results  of  legislative  effort  have 
been  allowed  to  lapse  into  history.  We  have  made 
experiments;  but  we  have  not  profited  by  them.  We 
have  no  means  of  knowing  what  we  have  experienced 
as  a  social  fact.  Experimentation  of  this  kind  is  just 
as  worthless  in  the  field  of  legislation  as  it  wrould  be  in 
chemistry  or  physics.  Again,  mankind  does  not  possess 
such  reserves  of  spiritual  force  that  it  can  afford  to 
squander  its  energies  in  attaining  at  a  loss  what  can 
be  acquired  with  profit. 


« Cf .  Spencer,  "The  Sins  of  Legislators,"  Contemporary  Review, 
May,  1884:  reprint  in  "Man  versus  the  State"  Williams  and  Norgate, 
London,  1907;  Am.  ed.  (Truxtun  Beale,  editor),  N.  Y.,  1916:  Comment 
by  Prof.  Harlan  F.  Stone,  p.  237. 

*»  See  General  Introduction  to  this  Series. 


Ixvi  EDITORIAL  PREFACE 

3.  The  last  method  necessary  for  scientific  law- 
making  is  the  philosophical.50  Demonstration  of  this 
claim  to  the  utilitarian  is  a  matter  of  some  difficulty. 
The  question  is  immediately  raised  in  the  language 
of  one  of  Tchekov's  characters,  "What's  philosophy 
got  to  do  with  it?"  It  may  at  once  be  answered.  Phil- 
osophy is  necessary  for  any  valuation  of  empirical  data. 
We  may  have  collected  with  great  diligence  a  great 
abundance  of  facts,  but  until  these  facts  are  funda- 
mentally evaluated,  they  are  grains  of  sand  having  the 
quality  of  bulk,  but  lacking,  nevertheless,  the  quality 
of  cohesion. 

This  may  be  demonstrated. 

A  proposal  for  legislation  is  made.  Let  the  question 
be  raised,  "What  do  you  expect  to  accomplish  by  it?" 
Assume  that  an  answer  is  given.  Now,  let  the  ques- 
tion be  asked,  "Why?"  and  let  the  same  interrogation 
be  repeated  until  the  subject  is  exhausted;  and  it  will 
be  discovered  that  the  proposal  is  based  on  a  philosophy 
of  some  sort  —  it  may  be  very  superficial,  and  hardly 
in  an  accurate  sense  worthy  to  be  dignified  by  the 
term  —  yet,  it  is  a  philosophy,  or,  at  least,  a  tender  of 
one.  It  will  be  the  ultimate  reason  or  explanation  in 
terms  which  must  involve,  not  the  individual  or  indi- 
viduals standing  alone,  the  group,  the  class,  or  the 
State,  but  the  whole  of  reality. 

It  may  be  objected  that  the  interpretation  may  be 
erroneous.  That  possibility,  nay,  even  the  probability, 
is  admitted.  It  may  further  be  objected  that  there 
be  at  the  same  moment  a  variety  of  conflicting 

•o  Extreme  statements  such  as  that  of  Alvarez  (p.  461  infra)  "that 
philosophy  of  law  has  become  synonymous  with  what  is  impossible  and 
absurd,"  greatly  overshoot  the  mark,  and  fail  to  be  serviceable  in  marking 
the  limits  of  caution  and  scope  which  should  attend  the  use  of  meta- 
physical ideas.  One  even  suspects  that  the  learned  author  (Alvarez) 
has  identified  all  philosophy  of  law  with  one  kind  of  natural  law. 


THE  LEGISLATIVE  FUNCTION          Ixvii 

interpretations.  That  also  is  admitted.  But,  after  all, 
there  is  a  right  interpretation,  even  though  the  human 
mind  does  not  discover  it,  and  even  though  we  disagree 
in  our  efforts.  And,  in  the  meanwhile,  though  man 
doubts  and  hesitates,  and  holds  tenaciously  to  the 
assertion  of  his  primary  wants,  thinking  and  acting 
as  his  clan  thinks  and  acts,  the  world  is  furnishing  an 
interpretation  of  its  own  which  is  overlooked  because 
we  are  a  part  of  it. 

A.  K. 


INTRODUCTION 

BY    H.    N.    SHELDON1 


An  essential  element  of  such  a  series  as  this,  consisting 
of  master-works  on  jurisprudence  and  the  philosophy 
of  law,  is  a  consideration  of  Legal  Method,  the  mode 
of  treatment  of  the  concrete  legal  problems  which  are 
presented  in  practice,  the  manner  in  which  the  abstract 
legal  principles  that  lie  at  the  foundation  of  all  jurispru- 
dence are  applied  to  the  task  of  reaching  just  and 
reasonable  conclusions  adequate  for  the  decision  of  all 
disputed  matters.  The  present  book  deals  with  this  ques- 
tion of  Legal  Method,  treating  it  mainly  from  the  stand- 
point of  Continental  jurists,  such  as  Professors  Franc. ois 
Geny,  Eugen  Ehrlich,  Geza  Kiss,  Josef  Kohler,  Heinrich 
Gerland,  of  different  European  universities,  Justice 
Gmelin  of  the  Stuttgart  Court  of  Appeals,  and  Fritz 
Berolzheimer,  the  president  of  the  International  Society 
of  Legal  and  Economical  Philosophy  of  Berlin.  Another 
noteworthy  chapter,  on  Courts  and  Legislation,  by 
Professor  Pound,  the  Dean  of  the  Harvard  Law  School, 
will  attract  special  attention  from  the  general  reader, 
and  that  attention  will  be  well  rewarded.  It  is  a  study 
of  the  nature  of  law  and  of  its  creation  and  development 
by  judicial  decision  and  by  legislation,  treated  both  in 
the  light  of  the  past  and  in  its  application  to  the  needs 
of  the  future,  —  a  development  and  application  advan- 
tageously to  be  made,  as  Professor  Pound  concludes,  by 
the  empirical  method  of  our  Anglo-American  law, 
assisted  by  proper  legislation. 

» Former  Justice  of  the  Supreme  Judicial  Court  of  Massachusetts. 


Ixx  H.  N.  SHELDON 

It  was  said  by  Lord  Campbell,  in  his  "Lives  of  the 
Lord  Chancellors,"  that  "English  lawyers,  though  very 
acute  practitioners,  have  been  rather  deficient  in  the 
enlarged  knowledge  of  jurisprudence;  and  that  has 
been  true  also  of  the  members  of  the  American  bar." 
This  doubtless  was  due  in  large  measure  to  the  some- 
what haphazard  method  of  legal  instruction  which  had 
prevailed  in  both  countries,  by  which  the  scientific 
element  in  the  law  was  almost  wholly  overlooked.  As 
has  been  pointed  out  by  Professor  Redlich  of  the  Uni- 
versity of  Vienna,  in  his  recent  report  to  the  Carnegie 
Foundation,  one  result  of  the  systematic  instruction 
now  given  in  most  of  our  law  schools  has  been  to  bring 
about  scientific  treatment  of  the  law,  which  may  be 
expected  to  cause,  among  scholars  at  any  rate,  increased 
regard  for  the  element  of  science  in  the  law  and  a  real 
study  of  comparative  jurisprudence.  It  may  be  hoped 
that  this  tendency  will  be  increased  when  to  what  is 
called  the  case  system  of  instruction  shall  be  added  a 
general  indoctrination  of  students  into  a  view  of  the 
law  as  one  whole  body,  which,  though  composed  of 
several  departments,  has  yet  an  organic  unity  of  its  own. 
Such  a  spirit  among  students  will  not  be  contented  until 
it  shall  have  utilized  the  researches  of  European  scholars 
in  the  field  of  law  regarded  both  as  an  art  and  as  a 
science.  One  of  the  objects  of  the  present  series  is  to 
contribute  to  the  attainment  of  that  end;  and  this 
volume,  necessarily  somewhat  disconnected  from  being 
made  up  of  the  works  of  different  scholars,  has  an  impor- 
tant place  in  the  series. 

Those  who  have  studied  exclusively  the  Common 
Law  are  accustomed  to  regard  the  cumulative  effect  of 
judicial  decisions  as  being,  with  the  additions  and  altera- 
tions made  by  statutes,  the  great  guide  to  be  followed 
in  the  practical  administration  of  justice,  as  affording 


INTRODUCTION  Ixxi 

the  best  means  of  reaching  proper  conclusions  in  the 
concrete  cases  that  have  to  be  decided  between  party 
and  party.  The  following  of  precedents  in  matters 
which  have  been  decided,  the  correct  deduction  from 
those  decisions  of  the  underlying  principles  upon  which 
they  have  been  rested,  and  the  application  of  those 
principles  to  new  questions,  so  that  old  and  new  decisions 
may  by  a  process  of  natural  development  grow  into  a 
continually  extending  body  of  law,  sufficient  for  the 
guidance  of  all  members  of  the  community,  have  been 
regarded  as  the  safe  method  of  judicial  decision.  No 
case,  it  is  considered,  stands  by  itself;  no  case  is  to  be 
decided  merely  by  a  determination  of  what  in  the  pecu- 
liar circumstances  presented  may  be  required  by  abstract 
justice,  as  the  conception  of  abstract  justice  presents 
itself  to  the  unlimited  discretion  of  the  court.  On  the 
contrary,  each  new  question  is  to  be  passed  upon  in  the 
light  of  rules  already  laid  down,  and  in  its  turn  is  to 
provide  both  new  rules  and  new  modes  for  the  applica- 
tion of  old  rules  to  the  settlement  of  new  questions; 
and  English  and  American  lawyers  have  been  wont  to 
believe  that  Continental  jurists  on  the  other  hand,  so 
far  as  they  are  not  aided  and  governed  by  the  positive 
provisions  of  a  code  or  other  statute,  are  taught  to 
disregard  precedents,  to  recognize  no  binding  force  in 
earlier  decisions,  but  to  endeavor  in  each  case  to  do 
justice  between  litigants  by  determining,  justly  and  in 
accordance  with  what  Professor  Geny  calls  the  "per- 
sonal inspiration"  of  the  judge,  all  the  controverted 
questions  that  may  come  before  him. 

It  is  true  that  in  the  Common  Law  not  only  do  statutes 
play  an  important  part  in  altering  or  abrogating  rules 
and  doctrines  established  by  decisions,  but  the  develop- 
ment and  increasing  intelligence  of  the  people,  their 
changes  of  opinion  on  matters  of  political  science  or  of 


Ixxii  H.  N.  SHELDON 

public  or  private  morals,  and  even  considerations  of 
expediency,  do  affect  powerfully,  though  slowly,  the 
views  of  the  judges,  and  do  materially  alter  and  some- 
times reverse  the  rules  and  doctrines  affirmed  by  former 
decisions.  So,  too,  upon  the  Continent  of  Europe,  as 
is  pointed  out  by  Justice  Gmelin  and  by  other  authors 
in  the  present  book,  it  is  the  function  of  the  judge,  sub- 
ject to  the  limitations  both  of  statute  and  of  custom, 
"to  contribute,"  as  Professor  Geny  says,  "to  the  creation 
of  law  and  to  develop  further  such  law  as  has  already 
been  formulated."  It  results,  if  these  contentions  are 
maintained,  that  fundamently  there  seems  to  be  not 
so  wide  a  difference  either  in  the  object  aimed  at  or 
(outside  of  certain  rules  of  evidence  or  procedure  not 
in  themselves  very  material)  in  ths  method  adopted 
for  reaching  that  object  between  our  own  courts  and 
those  of  Continental  Europe.  Accordingly  we  should 
find  in  these  pages  much  that  will  be  of  practical  value 
to  ourselves  and  our  courts,  as  well  as  much  that  con- 
cerns chiefly  the  science  of  jurisprudence  and  the  philo- 
sophy of  law. 

Our  authors,  recognizing  that  within  the  region  left 
to  the  judge  outside  of  the  bounds  of  statute  or  of  custom, 
he  must  exercise  his  personal  activity  to  perform  the 
function  which  has  been  stated,  have  much  to  say  about 
"the  nature  of  that  activity  as  regards  the  subject- 
matter  to  which  it  extends,  the  precise  manner  in  which 
it  works,  and  the  foundations  upon  which  it  is  based." 
The  distinction  between  the  two  systems  of  law  is 
brought  out  in  the  first  of  these  points.  According 
to  Professor  Geny  and  those  who  agree  with  him,  the 
judge,  when  the  formal  sources  are  insufficient  to  pre- 
scribe his  decision,  should  act  according  to  the  dictates 
of  real  justice,  on  the  rule  which  a  legislator  would 
prescribe  for  just  the  circumstances  of  that  particular 


INTRODUCTION  Ixxiii 

case,  abstaining  carefully  from  laying  down  any  abstract 
rule,  but  passing  simply  upon  the  concrete  problem 
presented.  The  common  law  judge,  on  the  other  hand, 
(and  some  of  the  Continental  jurists  agree  with  this) 
though  equally  careful  to  consider  all  the  particular 
circumstances  involved,  seeks  in  the  light  of  the  prin- 
ciples which  have  been  laid  down  in  other  cases  to 
determine  those  which  should  govern  the  case  before 
him.  It  is  for  this  reason  that  under  the  latter  system 
the  decision  has  the  force  of  a  precedent  which  is  denied 
to  it  under  the  former  system,  although  as  to  that  matter 
the  discussion  of  Professor  Ehrlich  in  the  second  chapter 
on  "Lawyers'  Law"  and  the  "jus  quod  est"  should  not 
be  overlooked.  It  is  both  interesting  and  instructive 
to  follow  the  keen  and  logical  discussion  of  the  question 
in  many  of  the  chapters  of  this  book. 

Under  both  systems  the  object  aimed  at  is  to  adapt 
the  rules  of  law  to  the  needs  of  social  life.  As  was  to 
be  expected,  the  authors  whose  work  is  here  presented  / 
do  not  exactly  agree  just  how  this  is  to  be  done.  But 
their  discussion  goes  deeper  than  many  of  us  have 
been  accustomed  to  look.  They  are  not  content  with 
saying  that  judicial  decisions  ought  to  depend  upon 
the  application  of  correct  principles  of  law  to  ascer- 
tained facts;  their  effort  is  to  show  how,  in  cases  not 
governed  by  rules  already  established,  the  correct  prin- 
ciples of  law  are  to  be  determined  and  so  applied  as  to 
produce  a  just  result.  The  fact  that  we  who  follow 
and  administer  the  Common  Law  resort  in  such  cases 
to  reasoning  from  principles  that  have  been  laid  down 
in  previous  decisions  ought  not  to  prejudice  us  against 
the  different  method  advocated  in  some  parts  of  this 
book  of  aiming  directly  at  the  ideals  of  justice  and  of 
general  utility.  It  is  to  be  regretted  that  the  omissions 
which  necessarily  have  been  made  from  some  of  the 


Ixxiv  H.  N.  SHELDON 

discussions  have  deprived  us  of  a  part  of  the  context. 
What  is  presented,  however,  is  ample  to  arouse  interest, 
and  it  well  may  be  hoped  that  many  readers  will  be 
led  to  examine  the  subject  further. 

We  need  not  here  consider  how  far  the  actual  results 
reached  by  these  methods  of  ascertaining  and  applying 
principles  of  law  to  new  cases  not  absolutely  governed 
by  those  principles  will  finally  differ  from  each  other. 
The  object  of  all  law  must  be  not  only  to  secure  real 
justice  to  the  community,  but  no  less  to  make  it  certain 
that  each  individual  shall  be  able  to  know  in  advance 
of  judicial  decision  what  are  his  rights  and  his  obliga- 
tions, so  that  he  may  regulate  his  conduct  aright.  In 
the  long  run,  that  system  or  union  of  systems  which 
best  attains  these  results  will  be  adopted.  In  the  mean- 
time we  cannot  overestimate  the  importance  of  studying 
carefully  every  system  for  which  preeminence  may  be 
claimed.  It  is  believed  that  this  book  will  be  of  material 
assistance  in  such  a  study,  and  all  the  more  so  from  the 
different  contentions  made  by  the  different  authors 
from  whose  works  it  has  been  derived. 


INTRODUCTION 

BY  JOHN  W. 


A  large  portion  of  the  present  volume  is  devoted  to 
the  discussion  by  divers  authors  of  the  question  of  what 
is  termed  "free  judicial  decision"  or  "freie  Rechtsfindung," 
—  namely,  the  deliverance  of  the  administration  of 
justice  from  undue  submission  to  minute  and  rigid  rules 
of  law  and  the  corresponding  extension  of  the  sphere  of 
unrestricted  judicial  discretion.  The  question  is  one 
which  has  received  but  scant  attention  in  English  or 
American  legal  literature,  but  it  is  clear  from  the  con- 
tents of  this  volume  that  it  has  been  the  subject  of  much 
consideration  from  European  jurists  and  that  it  is  one  of 
grave  practical  importance  in  respect  of  all  schemes  of 
legal  or  judicial  reform. 

Law  has  been  defined  by  many  men  in  many  different 
ways,  and  the  diversity  is  largely  due  to  the  fact  that  a 
system  of  law  is  a  complex  phenomenon  possessing 
different  aspects  from  different  points  of  view.  From 
the  point  of  view  of  the  lawyer,  however,  whether  he  is 
concerned  with  practice  or  with  theory,  the  law  presents 
itself  primarily  and  essentially  as  a  system  of  rigid  rules 
in  accordance  with  which  justice  is  administered  in  the 
tribunals  of  the  State  to  the  exclusion  of  the  unrestricted 
judicial  discretion  of  the  judges  and  magistrates  to  whom 
this  function  is  intrusted. 

Theoretically  the  administration  of  justice  is  possible 
without  the  existence  of  a  system  of  law  at  all.  Courts 
of  justice  might  in  theory  be  left  to  do  justice  according 

1  Solicitor-General  for  New  Zealand. 


Ixxvi  JOHN  W.  SALMOND 

to  their  own  good  pleasure,  determining  the  right  of  each 
individual  case  according  to  the  facts  of  that  case  and 
according  to  the  untrammeled  sense  of  natural  equity. 
Certain  courts  of  inferior  jurisdiction  do  in  fact  possess 
by  statute  this  power  of  adjudication  in  accordance  with 
equity  and  good  conscience  without  reference  to  rigid 
rules  of  law.  A  similar  jurisdiction  was  in  earlier  days 
exercised  by  courts  of  equity.  Nevertheless  the  general 
adoption  of  such  a  system  of  courts  of  justice  which  are 
not  also  courts  of  law  is  open  to  objections  so  grave  that 
at  all  times  and  in  all  places  it  has  been  found  necessary 
to  limit  or  exclude  judicial  discretion  by  elaborate 
systems  of  fixed  principles  of  law  which  courts  are  bound 
to  follow  in  the  exercise  of  their  judicial  functions.  These 
rules  have  been  either  imposed  upon  the  courts  "ab  extra" 
by  the  State  in  the  form  of  statute  law,  or  have  been 
developed  by  the  courts  themselves  in  the  form  of  judicial 
precedents  which  exclude  for  the  future  that  freedom  of 
judicial  decision  in  which  they  had  their  origin.  It  is 
true  that  this  system  of  administering  justice  according 
to  law  —  legal  justice  instead  of  natural  justice  —  has 
brought  grave  evils  in  its  train.  It  is  the  source  of  the 
technicality  and  formalism,  the  complexity  and  esoteric 
mystery,  which  have  at  all  times  been  made  a  ground  of 
reproach  against  judicial  administration.  Nevertheless 
the  good  sense  of  all  communities  has  at  all  times  recog- 
nized that  in  spite  of  these  grave  evils  the  balance  of 
advantage  lies  beyond  question  on  the  side  of  adminis- 
tering justice  in  obedience  to  a  rigid  and  elaborate  system 
of  binding  legal  rules. 

Although  there  is  no  question,  therefore,  that  in  all 
civilized  and  advanced  corrimunities  it  is  practically 
necessary  that  justice  should  be  administered  according 
to  law  and  not  according  to  the  sense  of  equity  and  good 
conscience  of  its  judicial  administrators,  there  still 


INTRODUCTION    •  (  Ixxvii 

remains  the  very  important  and  practical  question  as  to 
how  much  law  is  necessary:  that  is  to  say,  as  to  the 
extent  to  which  the  exclusion  of  free  judicial  discretion 
by  fixed  predetermined  principles  of  law  is  necessary 
and  justifiable.  How  far  should  a  legal  system  consist 
of  a  comparatively  small  number  of  general  principles 
which,  because  of  their  generality,  are  necessarily  flexible 
and  leave  scope  for  a  large  measure  of  judicial  liberty  in 
their  administration;  and  how  far,  on  the  other  hand, 
should  a  legal  system  seek  by  the  multitude,  minuteness, 
and  fixity  of  its  constituent  rules  to  exclude  so  far  as 
possible  the  liberty  of  judges  and  magistrates  to  do  as 
they  think  just  in  the  individual  case? 

There  can  be  little  doubt  that  English  law  and  the 
systems  derived  from  it  have  followed  the  latter  of  these 
courses  to  an  extreme.  In  complexity,  in  minuteness, 
and  in  rigidity,  these  systems  have  in  many  departments 
of  the  law  gone  far  beyond  the  ideal  limits.  This  over- 
growth of  law  is  indeed  scarcely  avoidable  in  any  system 
which  grows  by  the  internal  secretion  of  case-law  instead 
of  by  the  external  imposition  of  statute  law.  Statute 
law  is  almost  necessarily  more  general,  more  free  from 
minute  and  even  irrational  distinctions,  qualifications, 
and  exceptions,  than  the  law  which  is  developed  piece- 
meal from  precedents  established  by  reference  to  the 
individual  instance.  If  English  law  is  ever  codified,  the 
most  striking  difference  between  the  law  in  its  new 
statutory  form  and  the  unwritten  law  of  the  present  day 
will  be  an  enormous  reduction  in  its  bulk  and  complexity 
and  the  wholesale  elimination  of  the  minute  distinctions 
and  exceptions  by  which  it  is  now  disfigured. 

The  case  in  favor  of  an  elaborate  and  rigid  legal 
system  is  far  stronger  in  respect  of  substantive  law  than 
in  respect  of  procedure.  In  modern  times  we  have  begun 
to  recognize  the  extent  to  which,  in  all  matters  which 


Ixxviii  JOHN  W.  SALMOND 

relate  to  procedure,  judicial  discretion  may  wisely  be  left 
free  from  the  trammels  of  law.  Yet  we  have  a  long  way 
to  travel  on  this  road  before  an  ideal  system  is  within 
our  sight.  In  earlier  days  the  diseased  growth  of  pro- 
cedural law  was  the  chief  reproach  of  the  English  system. 
The  technicality  and  formalism  of  the  older  law  of  plead- 
ing and  practice  have  indeed  ceased  to  a  large  extent  to 
deform  and  discredit  the  administration  of  justice,  and 
will  rightly  be  regarded  by  the  future  historians  of  the 
law  as  one  of  the  most  remarkable  features  of  the  dark 
ages  of  legal  development.  The  elimination  of  legally 
essential  but  practically  immaterial  forms,  the  substi- 
tution of  merely  directory  for  mandatory  rules,  the 
establishment  of  wide  powers  of  amendment,  and  other 
reforms,  have  largely  restored  to  the  courts  the  power 
of  doing  in  matters  of  mere  procedure  such  justice  as 
seems  good  to  them.  Yet  we  are  still  far  from  being 
beyond  reproach  in  this  matter.  It  is  difficult,  for 
example,  to  view  the  complexities  and  technicalities  of 
the  modern  law  of  evidence  as  having  any  rational  justi- 
fication or  any  place  in  a  reasoned  system  of  judicial 
administration.  Surely  if  a  court  of  justice  is  fit  to  be 
intrusted  with  the  function  of  determining  issues  of  fact, 
it  is  also  fit  to  be  trusted  to  hear  and  consider  such 
evidence  as  in  its  unrestrained  discretion  it  considers 
relevant  to  those  issues.  A  system  of  rules  of  law  for  the 
admission  or  exclusion  of  evidence  would  surely  in  a 
rational  system  of  judicial  administration  go  its  way  to 
the  same  limbo  to  which  the  technicalities  of  the  law  of 
pleading  have  been  already  well  committed.  There  is 
no  other  form  of  human  inquiry  in  which  the  inquirer  is 
not  at  liberty  to  seek  guidance  from  any  source  which 
seems  good  and  sufficient  to  him. 

Why  then  should  the  inquiries  of  courts  of  justice  be 
conducted  on  any  different  principle?     In  many  modern 


INTRODUCTION  Ixxix 

statutes  creating  new  jurisdictions  it  is  expressly  pro- 
vided that  evidence  may  be  admitted  whether  admissible 
in  accordance  with  the  law  of  evidence  in  other  proceed- 
ings or  not. 

There  seems  no  reason  to  believe  that  this  elimination 
of  the  law  of  evidence  in  favor  of  free  judicial  decision 
has  brought  any  evils  in  its  train,  and  it  may  be  hoped 
that  the  progress  of  legal  reform  will  eventually  make  this 
elimination  general.  The  reasonable  precaution  against 
irrelevance  and  prolixity  in  trials  is  the  judicial  discre- 
tion of  the  court  in  excluding  evidence  which,  in  the 
opinion  of  the  court,  in  the  particular  case  is  needless  or 
has  no  bearing  on  the  issue,  and  not  the  application  of 
fixed  predetermined  rules  of  admission  or  exclusion. 
That  hearsay  is  not  evidence,  that  is  to  say  has  no 
evidential  value,  is,  notwithstanding  all  the  legal  quali- 
fications of  it,  notoriously  untrue  as  a  proposition  of  fact. 
Why  then  should  it  receive  the  authority  of  a  rule  of  law? 
Let  the  court  in  its  discretion  exclude  hearsay  when  it  is 
in  fact  destitute  of  evidential  value  or  where  there  is  no 
sufficient  reason  why  primary  evidence  should  not  be 
produced,  or  where  its  admission  is  otherwise  unjustifiable 
or  inexpedient;  but  in  the  very  numerous  cases  in  which 
such  evidence  is  in  fact  and  in  justice  unexceptionable, 
why  should  it  be  excluded  by  a  rule  of  law? 

In  the  case  of  substantive  law  on  the  other  hand  — 
law  which  determines  rights  and  liabilities  themselves 
and  not  merely  the  machinery  of  their  judicial  ascer- 
tainment and  enforcement  —  very  different  considera- 
tions are  applicable.  Here  the  case  in  favor  of  the 
administration  of  justice  in  accordance  with  a  complex 
body  of  rigid  rules  of  law  is  well  established.  Here,  if  we 
are  wise,  we  shall  have  as  little  "freie  Rechtsfindung"  as 
possible.  It  is  true  indeed  that  even  in  this  sphere  the' 
evils  which  accompany  an  elaborate  and  technical  legal 


Ixxx  JOHN  W.  SALMOND 

system  are  many  and  serious,  but  they  are  the  necessary 
price  which  a  community  pays  for  release  from  greater 
evils.  It  is  true  that  the  administration  of  justice 
according  to  law  is  notoriously  uncertain.  Yet  the 
extensive  substitution  of  unrestricted  judicial  discretion 
for  preestablished  rules  of  law  would  add  to  this  uncer- 
tainty rather  than  diminish  it.  It  is  true  that  the  law  is 
not  always  wise  or  just ;  but  in  the  long  run,  as  represent- 
ing the  formulated  wisdom  and  justice  of  the  community, 
it  will  be  found  wiser  and  juster  than  the  individuals 
who  administer  it.  The  ancient  maxim  that  it  is  not 
permitted  to  be  wiser  than  the  laws  is  applicable,  not 
merely  to  those  whose  business  it  is  to  obey  them,  but  also 
to  those  who  are  intrusted  with  their  administration.  It 
is  true  that  the  law  necessarily  lays  down  general  rules 
which  cannot  take  due  account  of  the  special  circum- 
stances of  the  individual  case,  whereas  a  court  which  is 
permitted  to  do  justice  at  its  good  pleasure  can  take  all 
these  circumstances  into  consideration  and  act  accord- 
ingly, observing  that  equity  which,  according  to  the  old 
definition,  mitigates  the  rigor  of  the  law.  Yet  it  is 
certain  that  this  advantage  is  bought  at  too  great  a  price. 
The  same  principle  which  allows  a  judge  to  take  account 
of  the  individual  merits  of  the  particular  case  exposes 
him  at  the  same  time  to  all  the  perverting  impulses  of 
his  emotional  nature,  to  all  his  prejudices,  and  to  the 
unconscious  bias  of  his  mental  constitution.  For  one 
case  in  which,  in  any  reasonable  system  of  law,  a  court 
was  constrained  to  do  injustice  because  of  necessary 
conformity  to  preestablished  rules,  there  would  be  many 
in  which,  unguided  by  such  rules,  he  would  be  led  astray 
by  the  temptations  which  beset  the  "arbitrium  judicis." 


A  characteristic  feature  of  modern  criminal  law  is  the 
substitution  of  judicial  discretion  in  the  measure  of 


INTRODUCTION  Ixxxi 

punishment  (restrained  only  by  a  fixed  legal  maximum) 
for  the  earlier  device  of  fixed  penalties.  I  am  far  from 
being  assured  that  the  change  is  altogether  one  for  the 
better.  There  is  much  to  be  said  for  the  establishment 
of  minimum  as  well  as  for  maximum  penalties,  in  order 
thereby  to  withdraw  the  courts  from  the  influence  of  a 
sentimental  humanitarianism  which  in  the  guise  of 
mercy  to  the  individual  too  often  does  grave  mischief  to 
the  community  at  large. 

One  of  the  chief  advantages  derived  from  the  mainte- 
nance of  a  bodyof  fixed  legal  rules  which  are  not  subject  to 
the  "arbitrium"  of  its  administration  is  that  on  this  basis 
rests  the  prestige  and  power  of  the  administration  of 
justice.  The  law  is  impartial.  It  has  no  respect  of 
persons.  Just  or  unjust,  wise  or  foolish,  it  is  the  same 
for  all,  and  for  this  reason  men  readily  submit  to  its 
arbitrament.  In  the  application  and  enforcement  of  a 
fixed  and  predetermined  rule,  alike  for  all  and  not  made 
for  or  regarding  his  own  case  alone,  a  man  will  willingly 
acquiesce.  But  to  the  "ipse  dixit"  of  a  court,  however 
just  or  impartial,  men  are  not  so  constituted  as  to  afford 
the  same  ready  obedience  and  respect.  The  "arbitrium 
judicis"  depends  for  its  prestige  upon  the  reputation  and 
personality  of  the  court  itself.  The  rule  of  law,  however 
imperfect,  has  behind  it  the  sanction  of  the  organized 
commonwealth.  Though  the  rule  of  law  may  work 
injustice  in  the  individual  case,  it  is  nevertheless  recog- 
nized that  it  was  not  made  for  the  individual  case  and 
that  it  is  alike  for  all.  "Durum  sed  ita  scriptum  est"  is 
allowed  as  a  sufficient  justification  for  its  imperfect 
operation  in  the  individual  instance.  The  law-abiding 
spirit  so  created  in  a  community  is  a  public  advantage 
that  far  outweighs  the  benefits  which  may  accrue  in 
particular  cases  by  allowing  to  courts  the  opportunity 
of  substituting  what  they  conceive  to  be  natural  justice 


Ixxxii  JOHN  W.  SALMOND 

in  lieu  of  justice  according  to  law.  An  elaborate  and 
technical  system  of  law  is  doubtless  in  many  respects  an 
evil  but  it  is  the  only  road  to  freedom  from  greater  evils. 
"We  are  in  bondage  to  the  law,"  said  Cicero,  "in  order 
that  we  may  be  free."  "Legibus  servimus  ut  liberi  esse 
possimus." 

The  foregoing  considerations  are  the  justification  for 
that  progressive  development  and  elaboration  of  the 
legal  system  which  is  the  necessary  result  of  the  binding 
operation  of  judicial  precedents.  English  law  and  every 
other  system  which  has  its  historical  origin  in  English 
law  grows  not  merely  externally  by  way  of  legislative 
imposition,  but  also  internally  by  the  secretion  of  new 
rules  which  are  the  product  of  the  judicial  interpretation 
of  the  law.  However  skillfully  drawn,  a  statue  when  first 
enacted  is  but  an  imperfect  piece  of  work.  It  contains 
ambiguities,  omissions,  and  real  or  apparent  inconsist- 
encies. But  in  the  process  of  time  it  is  supplemented  by 
a  body,  often  considerable  in  extent,  of  authoritative 
rules  of  case-law  by  which  these  defects  are  remedied. 
In  the  beginning  a  statute  means  what  the  courts  in  the 
exercise  of  their  unrestrained  judicial  powers  decide  that 
it  means.  In  the  beginning  the  meaning  of  a  statute  is 
a  question  of  fact  just  as  is  the  meaning  of  any  other 
written  document.  But  in  process  of  time  its  meaning 
becomes  more  and  more  taken  out  of  the  region  of  fact 
and  becomes  more  and  more  determined  by  authorita- 
tive rules  of  interpretation  created  by  the  judicial  pre- 
cedents which  arise  in  the  course  of  its  administration. 

It  is  true  that  this  development  of  case-law  has  its 
evil  aspects.  It  is  true  that  the  growing  burden  of  it  is 
such  as  to  give  some  weight  to  the  suggestion  that  the 
law  should  be  that  which  is  established  by  the  legislature 
only,  and  that  in  the  administration  and  interpretation 
of  that  law  the  courts  should  be  free  to  act  as  they  think 


INTRODUCTION  Ixxxiii 

fit,  without  subjection  to  a  vast  body  of  subsidiary  law 
created  by  the  decisions  of  their  predecessors.  Neverthe- 
less the  system  of  authoritative  judicial  precedents  is 
based  on  sound  considerations  of  public  policy. 

In  the  first  place  it  secures  the  proper  administration 
of  justice  by  imposing  upon  the  courts  that  restraint 
which  is  due  to  the  knowledge  that  their  determination 
of  the  individual  case  is  at  the  same  time  the  establish- 
ment of  a  fixed  rule  for  all  other  cases  of  the  same  kind. 
The  additional  sense  of  responsibility  so  given  to  the 
judicature  by  the  knowledge  that  they  are  making  law 
for  the  future,  as  well  as  deciding  an  individual  case,  has 
the  same  effect  in  eliminating  the  influence  of  illegitimate 
considerations  applicable  to  the  particular  instance  as  is 
exercised  by  the  existence  of  a  system  of  preestablished 
law. 

In  the  second  place  the  system  of  precedents  prevents 
the  same  question  from  remaining  indefinitely  open  as 
the  subject  of  repeated  litigation  and  judicial  determina- 
tion. As  early  as  possible  it  brings  every  unsettled 
question  within  the  scope  of  a  fixed  legal  principle  and 
takes  it  out  of  the  sphere  of  free  judicial  determination. 
A  judge  is  bound  by  the  decisions  of  his  predecessors,  not 
because  they  were  necessarily  or  even  presumably  wiser 
than  he  is  —  not  because  their  decisions  are  necessarily 
or  presumably  more  correct  than  those  at  which  he  would 
himself  arrive  —  but  because  it  is  in  the  public  interest 
that  questions  once  decided  should  remain  decided. 
Therefore  it  is,  that  the  law  grows  steadily  in  bulk  and 
elaboration  by  a  process  of  internal  secretion,  whereby 
the  sphere  of  the  "arbitrium  judicis"  grows  less  and  less 
and  the  sphere  of  authoritative  legal  principle  grows 
greater. 

The  evils  of  this  system  of  legal  development  are 
doubtless  great,  but  they  can  be  largely  avoided  by  the 


Ixxxiv  JOHN  W.  SALMOND 

recognition  of  two  practical  principles.  The  first  of 
these  is  that  no  decision  is  worthy  of  recognition  as  a 
precedent  unless  it  contains  within  itself  some  general 
principle  of  law  as  opposed  to  a  mere  determination  of 
the  individual  instance.  The  second  is  that,  in  order  to 
render  the  system  of  case-law  tolerable,  the  law  so  devel- 
oped should  from  time  to  time  be  formulated  as  statute 
law  so  that  its  principles  may  receive  authoritative 
expression  "in  abstracto"  freed  from  the  complexities  of 
the  individual  decisions  from  which  they  proceed.  No 
better  system  of  law  can  be  devised  than  a  system  of 
statute  law  progressively  supplemented  by  the  case-law 
which  arises  from  its  interpretation,  and  superseded 
from  time  to  time  by  a  fresh  formulation  of  statute  law 
which  incorporates  within  itself  the  case-law  theretofore 
developed. 

Closely  connected  with  the  foregoing  question  of  free 
judicial  decision  is  the  problem  of  the  sound  judicial 
interpretation  of  the  written  law  —  a  problem  to  which  a 
considerable  part  of  the  present  volume  is  devoted,  and 
which  by  reason  both  of  its  practical  importance  and  of 
its  scientific  interest  deserves  more  consideration  than  it 
has  received  in  English  legal  literature. 

The  true  doctrine  of  judicial  interpretation  is  a  reason- 
able compromise  between  two  unreasonable  extremes, 
each  of  which  is  rendered  possible  by  the  inherent  imper- 
fections of  human  speech  and  the  laxity  of  legislative 
construction  and  expression.  The  one  extreme  is  that  of 
the  strictest  literal  interpretation  —  the  unqualified  and 
rigid  acceptance  of  the  maxim,  "Ita  scriptum  est."  No 
language  is  so  perfect,  and  no  legislation  so  skillful,  that 
this  mode  of  interpretation  will  not  constantly  lead  to 
absurdities  and  defeat  the  true  purpose  of  the  legislature. 
The  opposite  extreme  is  the  license  of  disregarding  the 
letter  of  the  law  in  order  to  seek  elsewhere  a  rule  that  is 


INTRODUCTION  Ixxxv 

deemed  more  consonant  with  justice  or  the  legislature's 
intention.  The  ambiguities  and  other  defects  of  language, 
even  when  used  with  the  careful  precision  of  statute  law, 
are  such  that  no  legislation  will  bind  a  court  which  claims 
and  exercises  this  license  in  its  methods  of  interpretation. 
If  the  wTords  of  the  law  can  be  given  an  unnatural  mean- 
ing, if  words  can  be  read  into  a  statute  which  are  not 
expressed  therein,  or  disregarded  as  inoperative  although 
they  appear  therein,  if  the  courts  are  at  liberty  to  adopt 
as  law  that  which  the  legislature  is  presumed  to  have 
meant  rather  than  that  which  it  has  actually  said,  there 
are  few  statutes  which  would  be  proof  against  the  dis- 
solving influences  of  this  form  of  interpretation;  and  the 
courts  instead  of  being  bound  by  fixed  rules  of  law  made 
for  them  would  in  effect  be  at  liberty  to  legislate  for 
themselves  and  to  substitute  under  the  guise  of  interpre- 
tation the"  arbitrium  judicis"  for  the  "lexscripta."  Judi- 
cial and  forensic  astuteness  could  on  this  system  untie 
all  legal  bonds  imposed  by  the  legislature,  and  substi- 
tute for  the  administration  of  justice  according  to  law 
its  administration  according  to  the  good  pleasure  of  the 
courts. 

The  true  and  authentic  system  of  interpretation  is  a 
compromise  between  these  two  extremes.  The  fundamen- 
tal maxim  of  sound  interpretation  is  "ita  scriptum  est," 
and  it  is  not  the  business  of  the  courts  to  be  wiser  than 
the  laws  and  to  mold  them  into  conformity  with  judicial 
views  of  what  is  just  or  unjust.  The  letter  of  the  law  is 
the  law  itself.  Nevertheless  there  are  cases  in  which  the 
"litera  legis"  is  logically  defective  and  cannot  be  so 
received  as  the  authoritative  and  conclusive  expression  of 
the  will  of  the  legislature.  It  may  be  ambiguous,  express- 
ing more  than  one  alternative  meaning.  It  may  be  incon- 
sistent, expressing  two  concurrent  and  conflicting  mean- 
ings. It  may  be  incomplete,  providing  for  part  only  of 


Ixxxvi  JOHN  W.  SALMOND 

a  complex  subject-matter  and  leaving  the  residue  unpro- 
vided for.  In  these  cases  and  in  these  only  is  there  any 
lawful  scope  for  judicial  interpretation  which  departs 
from  the  letter  of  the  law.  In  these  cases,  as  the  authori- 
tative formulation  of  the  law  has  failed  to  express  a 
single  harmonious  and  complete  idea,  it  may  be  lawfully 
supplemented  by  considerations  drawn  from  the  real  or 
presumed  purpose  of  the  legislature  and  from  the  require- 
ments of  natural  justice.  In  all  other  cases  the  public 
interest  is  best  served  in  the  long  run  by  the  loyal 
recognition  on  the  part  of  the  courts  of  the  fact  that 
their  business  is  not  to  make  the  law  or  to  reform  it,  but 
to  obey  and  administer  it  as  it  stands,  leaving  with  the 
legislature  the  responsibility  for  its  imperfections. 


LIST  OF  ABBREVIATIONS 


ABR,  Archiv  fur  Burgerliches  Recht. 

ARWP,  Archiv  fur  Rechts-  und  \Yirtschaftsphilosophie. 

AZP,  Archiv  fur  Zivilistische  Praxis. 

BGB,  Burgerliches  Gesetzbuch  (German  Civil  Code). 

DJZ,  Deutsche  Juristenzeitung. 

DRZ,  Deutsche  Richterzeitung. 

GU,  Gerichtsurteil  (Court  Decision,  in  Austria). 

HGB,  Handelsgesetzbuch  (Commercial  Code). 

JW,  Juristisches  Wochenblatt. 

OBGB,     Oesterreichisches    Allgemeines     Burgerliches    Gesetzbuch 

(Austrian  Civil  Code). 

OSG,  Oesterreichisches  Strafgesetzbuch  (Austrian  Penal  Code). 
RG,  Reichsgericht  (Imperial  Supreme  Court,  Germany). 
RGStr.,  Entscheidungen  des  Reichsgerichts  in  Strafsachen. 
RGZ,  Entscheidungen  des  Reichsgerichts  in  Zivilsachen  (Decisions 

of  the  Imperial  Court  in  Civil  Cases). 
VGH,  Verwaltungs-Gerichtshof  (Administrative  Court). 
ZSRG,  Zeitschrift  der  Savignystiftung  fur  Rechtsgeschichte. 
ZRW,  Zentralblatt  fiir  Rechtswissenschaft. 
ZVR,  Zeitschrift  fur  Vergleichende  Rechtswissenschaft. 


SCIENCE  OF  LEGAL  METHOD 


PART  I  — THE  PROBLEM  OF  THE  JUDGE 


CHAPTER  I 

JUDICIAL   FREEDOM   OF   DECISION:     ITS 
NECESSITY  AND   METHOD 

BY  FRANCOIS  GENY* 

I.     ITS  BASIS 

§1.  NEED  FOR  AND  NATURE  OF  FREE  LEGAL  DECI- 
SION.—§2.  GENERAL  SCOPE  OF  FREE  DECISION.— §3.  OB- 
JECTIVE FACTORS  IN  SCIENTIFIC  INVESTIGATION;  PUBLIC 
OPINION.— §4.  SYSTEMATIC  LOGIC  AND  THE  TECHNICAL 
SIDE  OF  OUR  SCIENCE;  CONCEPTS  AND  ABSTRACT 
NOTIONS.  —  §  5.  THE  "NATURE  OF  THINGS";  THE  IDEA 
OF  LAW  AS  A  MEANS  TO  AN  END. 

II.     ITS  PRACTICAL  APPLICATION 

§  6.  THE  METHOD  OF  FREE  DECISION.  —  §  7.  LIBERAL 
USE  OF  THIS  METHOD.  — §8.  THE  AUTONOMY  OF  INDI- 
VIDUAL WILL  EXPLAINED.  —  §  9.  EXTENT  OF  THE  PRIN- 
CIPLE OF  THE  AUTONOMY  OF  THE  WILL.  —  §  10.  SAME1 

1  [Professor  of  Civil  Law  at  the  University  of  Nancy.  The  selections 
translated  are  taken  from  sections  155-159,  169-176  of  his  "Methode 
d'interpretation  et  sources  en  droit  prive  positif,"  Paris,  1899.  He  is 
also  author  of  "Science  et  technique  en  droit  prive  positif:  nouvelle  con- 
tribution a  la  critique  de  la  methode  juridique,"  vol.  i,  Paris  1914;  vol.  ii, 
Paris  1915.  The  translation  is  by  Ernest Bruncken,  of  Washington,  D.  C.] 


2  GENY:   FREEDOM  OF  DECISION      [CH.I 

SUBJECT  CONTINUED.  — §11.  THE  PRINCIPLE  OF  THE 
EQUILIBRIUM  OF  INTERESTS.—  §  12.  SAME  SUBJECT  CON- 
TINUED.— §  13.  THE  PRINCIPLE  OF  SUPERIOR  INTEREST 
OF  THE  COMMUNITY.— §14.  OTHER  APPLICATIONS  OF 
THE  METHOD  OF  FREE  DECISION. 

I.     ITS  BASIS 

§  1.  Need  for,  and  Nature  of,  Free  Legal  Decision. 
The  formal  sources  of  positive  private  law  (which  I  have 
tried  to  explain  [in  the  preceding  chapter]13  according 
to  their  proper  scope  and  their  legitimate  use),  certainly 
furnish  the  best  guide,  in  their  peculiar  field,  for  the 
administration  of  the  law.  We  cannot  conceal  from 
ourselves,  however,  that  even  the  subtlest  and  most 
penetrating  interpretation  of  the  positive  manifesta- 
tions of  the  law  will  not  by  itself  satisfy  all  the  needs  of 
legal  life.  Especially  —  speaking  now  only  of  the  source 
of  law  which  at  the  present  day  is  of  all  sources  the 
most  perfect  and  fertile,  the  written  law  —  it  is  clear 
that  we  shall  find,  if  we  consider  it  as  we  ought,  as  an 
act  of  human  intelligence  and  will,  and  therefore  limited 
in  its  outlook  and  even  more  limited  in  its  actual  effect, 
that  we  cannot  derive  from  it  the  full  solution  of  all  the 
infinite  number  of  questions  that  clamor  for  answers  in 
the  complexities  of  social  life,  no  matter  how  deeply  we 
may  dig  into  the  meaning  of  the  statutes,  and  how 
ingeniously  we  may  construe  them. 

There  comes  a  point,  accordingly,  where  the  Court 
can  no  longer  rest  secure  on  a  formal  rule  but  must  trust 
to  his  own  skill  in  finding  the  proper  decision  which  he 
is  not  permitted  to  refuse.2  Moreover,  as  long  as  a 
lawyer  merely  searches  the  statutes  for  rules  that  do 
not  depend  on  his  own  judgment,  he  plays  no  more  than 

u[Not  translated.] 

'  See  section  4,  French  Civil  Code. 


§1]  NATURE  OF  FREE  DECISION  3 

a  receptive  or  mechanical  part.  His  own  skill  enters 
upon  the  scene  when  it  becomes  a  matter  of  discovering 
and  using  the  underlying  principles  of  every  mere  statu- 
tory rule,  which  alone  make  the  rule  valuable  and  preg- 
nant. Consequently,  if  we  take  the  organized  body  of 
the  positive  law  as  a  whole,  we  may  say  that  the  central 
and  normal  part  to  be  played  by  the  judge  consists  in  a 
personal  mental  activity.  The  manner  in  which  this 
activity  should  be  employed  it  is  important  to  under- 
stand. 

In  the  old  days,  when  statutes,  and  especially  statutes 
relating  to  private  law,  were  few,  fragmentary,  and  very 
incomplete,  and  when  even  customary  law  appeared 
still  shifting,  loosely  fixed,  and  uncertain,  the  decision 
of  the  judge  had  a  vast  field  before  it,  and  almost  entire 
freedom  of  exercising  itself.  It  was  immaterial,  in  this 
respect,  whether  the  judgment  was  supposed  to  be  a 
sort  of  revelation  by  the  Deity,  or  based  on  the  less 
archaic  conception  that  it  was  an  authorized  expression 
of  the  public  conscience. 

According  as  customs  have  become  more  firmly 
established,  and  especially  as  statutes  have  multiplied 
and  extended  their  application  over  constantly  growing 
portions  of  private  law,  the  part  played  by  the  personal 
inspiration  of  the  judge  has  become  narrower  and  at  the 
same  time  more  accurately  defined.  It  has  never  dis- 
appeared entirely,  for  the  reason  that  the  formal  sources 
have  always  been  incapable,  taken  by  themselves,  of 
covering  the  whole  field  of  the  law.  Whenever  rules  are 
made  by  some  authority  other  than  the  courts,  the  dis- 
cretionary functions  of  the  latter  invariably  become  more 
accentuated  although  within  a  more  circumscribed  sphere. 
But,  at  the  same  time,  discretion  becomes  less  arbitrary 
and  subjective.  Discretion  always  remains  because  it  is 
inherent  in  the  very  nature  of  the  judicial  function; 


4  GENY:   FREEDOM  OF  DECISION      [Cn.I 

it  has  a  broader  sweep  where  it  can  be  exercised  outside  of 
all  formal  legal  sources,  and  becomes  less  complete 
where  it  is  called  upon  merely  to  give  effect  to  such 
sources  of  law. 

§  2.  General  Scope  of  Free  Decision.  Even  to-day  there 
exists  undoubtedly  this  double  function  of  the  judge: 
he  is  to  contribute  to  the  creation  of  law,  and  to  develop 
further  such  law  as  has  already  been  formulated.  The 
legislator  himself  is  not  even  in  a  position  to  restrain 
his  discretion  arbitrarily.  Limitations  may  be  found, 
however,  in  direct  and  imperative  provisions  of  the 
written  law,  or  in  custom.  Within  the  bounds  left  to 
the  judge  by  these  positive  rules  he  must  exercise  his 
personal  activity.  The  thing  for  us  to  consider  in  this 
place  is  the  nature  of  this  activity  as  regards  the  subject- 
matters  to  which  it  extends,  the  precise  manner  in  which 
it  works,  and  the  foundations  on  which  it  is  based. 

Whenever  it  is  the  business  of  a  judge  to  discover  what 
the  law  is  in  fields  in  which  it  has  not  yet  been  formu- 
lated, his  functions  have  an  appearance  analogous  to 
that  of  the  legislator  himself.  Leaving  aside  for  the 
present  the  fact  that  the  Court  intervenes  only  when  a 
particular  state  of  facts  has  actually  arisen  to  which  the 
law  must  be  applied  —  by  no  means  a  negligible  dis- 
tinction, but  one  which  just  now  is  for  us  of  secondary 
importance  —  the  considerations  that  must  guide  the 
judge  in  accordance  with  the  end  to  be  attained  are 
exactly  the  same  as  those  which  would  influence  the 
legislator.  For  the  one  as  well  as  the  other  aims  at 
promoting  by  an  appropriate  rule  the  ends  of  justice 
and  social  utility.  I  should  not  hesitate,  when  the  formal 
sources  are  silent  or  insufficient,  to  prescribe  as  the  general 
guide  of  the  judge  the  following  outline:  he  should 
formulate  his  decision  in  accordance  with  the  same 
considerations  which  the  legislator  would  have  in  mind 


§2]  SCOPE  OF  FREE  DECISION  5 

if  he  were  to  prescribe  rules  relating  to  the  question  at 
issue.  Yet  there  is  one  important  difference  between  the 
function  of  the  judge  and  that  of  the  legislator.  The 
latter  is  surrounded  by  no  barriers  preventing  him  from 
considering  the  circumstances  in  every  one  of  its  aspects, 
because  he  is  called  upon  to  establish  an  entirely 
abstract  rule.  The  Court,  on  the  other  hand,  renders  his 
decision  on  a  particular  and  actual  state  of  facts,  so  that 
his  problem  becomes  very  concrete.  According  to  the 
spirit  of  our  judicial  system,  and  in  order  to  avoid 
becoming  arbitrary,  he  must  rid  himself  as  far  as  possible 
of  all  personal  influences,  as  well  as  of  those  which  arise 
from  the  particular  circumstances  of  the  case  before 
him,  so  as  to  base  his  legal  decision  on  nothing  but  the 
objective  elements  constituting  the  case.  Here  is  the 
reason  why  the  name  I  have  given  to  this  function  of 
the  judge,  free  decision  on  the  basis  of  scientific 
investigation,  seems  to  me  justified.  It  is  free,  because 
no  positive  outward  authority  compels  him  to  decide  as 
he  does;  it  is  scientific,  because  it  finds  its  solid  founda- 
tions in  nothing  but  the  objective  elements  which  legal 
science  must  reveal  to  him. 

What  I  have  said  of  the  courts,  which  are  the  official 
and  authoritative  administrators  of  the  positive  law, 
applies  necessarily  also  not  only  to  the  practising  attor- 
ney but  to  the  theoretical  or  critical  scholar  interpreting 
the  law.  It  is  the  part  of  the  latter  simply  to  do  the 
preliminary  work  so  that  the  judiciary  may  put  the 
results  into  practical  effect.  The  work  of  the  judge  de- 
termines what  work  the  theoretical  scholar  is  to  do.  The 
latter  escapes  the  difficulty  caused  by  the  direct  effects 
of  the  troublesome  or  suspicious  influence  of  concrete 
cases,  but  the  objective  point  of  all  his  efforts  is  at 
bottom  the  adaptation  of  the  latent  rules  of  the  law  to 
all  the  data  of  social  life. 


6  GENY:   FREEDOM  OF  DECISION      [Cn.  I 

Thus  the  method  of  legal  science  in  this  field  of  free 
research  which  we  now  have  in  mind  must  have  for  its 
goal  the  discovery,  whenever  the  formal  sources  fail, 
of  the  objective  factors  to  which  all  problems  of  positive 
law  must  look  for  their  solution. 

§  3.  Objective  Factors  in  Scientific  Investigation; 
Public  Opinion,  From  the  point  we  have  now  reached, 
so  wide  a  field  and  such  far-off  horizons  stretch  out  before 
us  that  we  cannot  possibly,  in  this  cursory  sketch,  deal 
with  all  the  detail ;  so  I  find  myself  constrained  to  limit 
myself  to  outlining  a  few  characteristics  of  the  sub- 
ject. To  study  its  objective  realities  in  a  satisfactory 
fashion  we  should  have  to  descend  to  the  very  roots  of 
the  constitution  of  humanity  and  discover  the  ultimate 
foundations  of  the  ends  for  which  it  exists.  Then  we 
should  have  to  return  to  the  phenomena  which  form  the 
essential  structure  and  nourish  the  continuous  life  cur- 
rent of  society. 

No  doubt  we  should  not  blind  ourselves  to  the  fact 
that  an  examination  of  all  these  great  problems  which  form 
the  natural  field  for  a  broad  philosophy  of  the  law  is  for. 
the  science  of  positive  law  also  of  capital  importance; 
and  I  propose  to  defend  myself  strenuously  against  any 
charge  of  yielding  to  the  naturalistic  or  agnostic  tenden- 
cies that  are  now  so  fashionable,  as  I  know  very  well. 
Personally,  however,  I  am  of  the  opinion  that  these 
tendencies  are  irreconcilable  with  the  true  scientific 
spirit,  and  fatal  to  its  effective  application  to  actual 
practice. 

Yet  it  will  have  to  suffice,  provisionally  at  least 
(and  with  the  reservation  that  I  may  come  back  to  this 
whole  side  of  my  subject  in  a  larger  manner  and  in 
another  study),  for  our  present  purposes  to  accept  the 
ideas  of  common  sense  and  common  opinion  regarding 
the  nature  of  our  social  organization  and  to  see  what 


§3]  OBJECTIVE  FACTORS  7 

help  we  can  get  for  our  development  of  private  law 
from  a  careful  investigation  of  the  conditions  of  human 
life  and  a  judicious  employment  of  our  own  humaji 
nature. 

The  question  is,  therefore:  How  can  the  administra- 
tion of  positive  law,  when  the  Court  is  left  to  itself  without 
help  from  statute  or  custom,  deal  with  objective  data  so 
as  to  satisfy  the  requirements  of  life  without  incurring 
the  reproach  of  being  arbitrary,  and  how  should  it 
proceed? 

Before  everything  else  I  should  get  rid  of  an  idea  which 
under  the  social  and  economic  conditions  of  our  epoch 
affords  many  temptations.  This  idea  is  the  underlying 
conception  of  the  theory  upheld  by  the  Historical  School 
in  the  various  more  or  less  definite  forms  it  has  assumed 
in  the  minds  of.  a  number  of  eminent  thinkers.  It  is 
difficult  to  escape  its  influence  altogether,  and  yet  it 
seems  to  me  as  if  it  ought  to  be  entirely  banished  from 
all  good  legal  method.  That  is  the  idea  that  public 
opinion,  representing  the  general  feeling,  more  or  less 
conscious,  of  the  people  interested,  can  legitimately  sug- 
gest to  the  Court  the  solutions  of  juridical  problems 
which  he  is  seeking.  Aside  from  the  almost  insurmount- 
able difficulty  of  determining  in  a  convincing  manner 
what  the  state  of  public  opinion  may  be  regarding  any 
given  legal  question,  I  believe  that  the  common  judgment, 
as  long  as  it  has  not  been  transformed  into  an  actual 
custom,  ought  not  to  be  held  to  have  authority  to  impose 
itself  on  the  courts  for  the  solution  of  legal  problems. 
Even  in  the  legislative  sphere  it  seems  to  me  very  doubt- 
ful whether  those  intrusted  with  the  duty  of  establishing 
general  legal  rules  ought  to  be  guided  principally  by 
public  opinion,  which  is  always  unstable  and  very  little 
sure  of  itself.  In  any  case,  however,  where  we  are  dealing 
with  the  administration  of  law  supposed  to  be  already  in 


8  GENY:   FREEDOM  OF  DECISION      [CH.I 

existence,  I  do  not  see  what  serious  reason  could  be 
given  for  basing  decisions  on  the  recognized  influence 
of  general  feeling  regarding  the  matter.  I  do  not  intend 
to  say  by  any  means  that  the  Court  should  absolutely 
refuse  to  consider  public  opinion.  In  so  far  as  it  is  itself 
a  social  fact  which  must  be  taken  into  account,  it 
cannot  fail  to  demand  his  attention.  What  I  mean  to 
insist  upon  is  that  no  matter  how  firmly  settled  public 
opinion  may  seem  to  be,  it  must  not  be  allowed  to  deter- 
mine the  judgment  of  the  Court,  nor  to  serve  him  as  a 
test  showing  what  the  law  is,  for  the  simple  reason  that 
it  cannot  pretend  to  be  proof  of  the  truth  regarding  exist- 
ing conditions,  and  the  only  thing  to  discover  and  apply 
practically  is  that  truth. 

Thus  the  Court  will  have  to  rely  upon  himself  and  find 
no  guide  except  the  nature  of  things  themselves.  That 
nature  of  things,  fertilized  and  developed  by  systematic 
logic,  will  be  the  subject-matter  of  his  investigations. 

§  4.  Systematic  Logic  and  the  Technical  Side  of  Our 
Science;  Concepts  and  Abstract  Notions.  Now  let  us 
first  take  a  look  at  the  last-named  factor  in  our 
method. 


It  is  essential,  for  a  proper  understanding  of  the  sub- 
ject, to  keep  apart  logic  in  the  proper  sense  and  legal 
technic.  Logic  in  its  proper  sense  has  a  legitimate 
and  necessary  part  to  play  in  the  administration  of  the 
law  whenever  there  is  a  question  of  discovering  the  true 
content  of  some  expression  of  will,  be  it  that  of  a  legal 
command  or  of  the  intention  of  an  individual  to  which 
the  positive  law  gives  effect.  The  same  thing  is  true 
whenever  it  becomes  necessary  to  reason  out  the  practical 
consequences  and  scope  of  a  legal  principle  derived  from 
the  nature  of  things  and  objective  realities. 


§4]  SYSTEMATIC  LOGIC  9 

i 

The  function  of  legal  technic  is  something  quite  dif- 
ferent. Lawyers  look  at  the  complex  and  moving  reali- 
ties of  social  life,  which  it  is  their  duty  to  reduce  to 
order,  and  upon  the  varying  interests  involved,  from  a 
very  special  angle,  and  submit  these  realities  to  artificial 
processes  which  transform,  and  sometimes  deform,  their 
effective  nature.  Thus  certain  economic  operations, 
which  naturally  would  be  variable  and  uncertain  in  their 
character,  are  cast  into  a  firm  and  unchanging  mold, 
or,  as  one  might  say,  change  their  shape  by  passing 
through  the  crucible  of  the  law.  For  instance,  the  finan- 
cial operation  of  exchange,  which  in  a  way  arises  simply 
from  the  acts  of  the  parties  in  interest,  becomes  clothed 
with  a  definite  and  almost  rigid  legal  character  in  the 
form  of  a  bill  of  exchange,  with  the  conditions  and  effects 
imposed  on  it  by  positive  law.  In  a  more  general  way 
it  may  be  said  that  legal  technic  fixes  the  characteristic 
features  of  those  facts  from  which  legal  consequences 
may  flow,  by  defining  these  consequences  itself.  Thereby 
it  establishes,  perhaps  not  exactly  a  sort  of  hierarchy, 
but  at  least  a  general  scheme  within  which  the  actual 
facts  of  social  life  must  find  a  place,  and  to  which  they 
must  to  some  extent  accommodate  themselves.  In  so 
far  as  by  these  processes  legal  technic  helps  to  develop 
and  makes  easier  the  relations  of  human  life,  or,  to 
follow  a  pregnant  expression  used  by  Jhering,  procures 
the  formal  conditions  which  make  the  law  effective,  it 
has  a  very  legitimate  part  to  play.  Under  existing  con- 
ditions of  society  the  creation  of  the  means  by  which 
this  technic  works  is  the  exclusive  business  of  the  legis- 
lator, or  in  exceptional  cases  of  custom ;  but  it  is  the  duty 
of  the  courts  to  strengthen  its  functions  by  ingeniously 
harmonizing  the  various  parts  of  the  system  of  legal 
technic  and  make  it  function  more  smoothly  by  con- 
stantly adapting  means  to  the  end. 


10  GENY:   FREEDOM  OF  DECISION      [CH.I 

The  function  of  legal  technic  is  not  limited,  however, 
to  making  sure  that  the  ultimate  object  of  all  law  is 
attained  by  its  processes  of  synthesis  and  simplification. 
The  reason  for  this  arises  from  the  very  nature  of  legal 
technic;  it  is  the  effect  of  the  artificial  character 
inherent  in  it,  and  of  the  almost  inappreciable  line 
which  separates  generalizations  of  observed  facts  from 
imagined  abstractions.  There  is  still  another  task  before 
it,  and  in  this  regard  the  part  of  legal  administration 
greatly  exceeds  that  of  legislation.  By  means  of  legal 
technic  we  may  isolate  ideas  from  realities,  attempt  to 
get  abstract  general  notions  of  the  component  elements  of 
the  law  and  mold  them  into  abstract  concepts.  From 
these  again  we  may  deduce  abstract  "constructions" 
to  which  the  fact  will  have  to  be  adapted,  sometimes  by 
main  force.  In  another  place  I  have  spoken  of  the 
dangers  which  arise  from  these  technical  operations; 
but  my  consciousness  of  such  dangers  has  not  led  me  to 
be  in  favor  of  the  complete  exclusion  of  legal  concepts  and 
the  "constructions"  deduced  from  them.  Not  only  do  I 
not  hesitate  to  say  that  the  courts  are  bound  to  accept  the 
formal  concepts  which  have  been  positively  embodied  in 
the  statutes,  and  to  deduce  from  them  all  the  conse- 
quences to  which  they  lead,  just  as  they  would  do  from 
every  other  expression  of  the  intention  of  the  law.  I  go 
further  and  ascribe  to  the  function  of  administering  the 
law  the  full  power  of  creating  on  its  own  account  similar 
concepts.  As  I  see  it,  the  greatest  usefulness  of 
abstract  concepts  is  found  not  in  helping  to  build  up  a 
systematic  theory  of  the  law,  but  in  this,  that  they  may 
become  a  sure  guide  of  the  judge  in  applying  the  law  to 
the  facts,  and  that  at  the  same  time  they  have  the  power, 
if  skillfully  handled,  of  increasing  the  scope  and  fecund- 
ity of  legal  principles.  However,  while  I  do  insist 
on  the  legitimacy  of  these  technical  operations,  I  also 


§4]  SYSTEMATIC  LOGIC  11 

affirm  that  in  employing  them  the  Court  should  always 
be  guided  by  two  important  considerations.  On  the  one 
hand,  it  would  absolutely  be  an  error  to  believe  that  every 
legal  rule  must  necessarily  revolve  around  some  ideal 
concept  which  gives  it  life  and  determines  its  scope. 
Quite  to  the  contrary,  I  maintain  as  incontrovertible 
a  priori  that  the  strongest  and  most  certain  precepts 
of  the  law  are  those  which  spring  directly  from  the  nature 
of  things  without  the  intervention  of  some  abstract 
concept,  which  in  all  cases  cannot  but  deviate  in  some 
points  from  reality.  On  the  other  hand,  while  sometimes 
it  may  appear  useful  to  have  recourse  to  concepts  and 
abstract  "constructions"  by  the  employment  of  these 
technical  operations,  the  judge  must  never  forget  that 
these  take  him  outside  of  the  realm  of  those  objective 
realities  which  alone  should  guide  his  judgment.  He 
should  guard  against  believing  himself  bound  by  these 
concepts  (except  where  the  statutes  themselves  adopt 
them)  and  never  take  them  for  more  than  scientific 
hypotheses,  which  are  no  doubt  capable  of  helping  him 
in  conducting  his  investigations  but  are  never  to  be  taken 
as  established  realities.  Therefore  the  needs  of  actual 
life  must  never  be  sacrificed  to  mere  concepts. 

These  observations  seem  to  mark  pretty  well  the  boun- 
daries one  should  not  exceed  in  logical  systematization. 
It  appears  pretty  clearly  from  them  that  the  main  sup- 
port of  the  administration  of  the  law  must  be  sought 
in  something  else  if  its  proper  functioning  is  to  be  secured. 
Instead  of  relying  on  abstract  concepts  of  the  mind,  which 
are  in  their  very  origin  inconstant  and  uncertain,  the 
Court  needs  to  avail  himself  of  the  firm  principles  which 
only  a  careful  investigation  of  the  nature  of  things 
themselves  can  furnish. 

§  5.  The  Nature  of  Things;  the  Idea  of  Law  as  Means 
to  an  End.  Thus  we  have  at  last  come  to  inquire  into 


12  GENY:   FREEDOM  OF  DECISION      [Cn.I 

the  principal  task  of  free  decision  on  the  basis  of  scien- 
tific research,  which  is  the  examination  of  the  nature  of 
things  themselves.  That  is  an  idea  which  may  lack 
precision  but  has  been  found  very  pregnant.  It  was 
introduced  into  the  investigations  of  jurists  by  the 
German,  Runde,  about  1791,  and  has  since  that  time 
been  much  employed  by  German  legal  science  as  a 
substitute  for  the  formal  sources  of  positive  law.  On  the 
other  hand  its  intrinsic  merits  have  more  than  once  been 
disputed,  and  Windscheid  used  to  stigmatize  it  as  a  dis- 
reputable expression. 

Perhaps  the  discredit  with  which  this  notion  —  in 
my  opinion  an  indispensable  one  in  any  system  of  posi- 
tive law  —  is  threatened  may  be  avoided  if  we  define  its 
nature  a  little  more  than  has  heretofore  been  done  and 
show  what  good  results  it  may  produce. 

The  meaning  which  Runde  attached  to  this  expression 
and  which  has  been  generally  accepted,  according  to 
which  the  nature  of  things  may  be  considered  as  one  of 
the  sources  ("lato  sensu")  of  positive  law,  rests  upon  the 
following  assumption:  the  relations  of  social  life,  or 
putting  it  more  generally,  the  facts  underlying  every 
juridical  organism,  carry  within  themselves  the  conditions 
under  which  they  may  be  in  equilibrium  and  indicate 
themselves,  if  one  may  say  so,  the  rules  by  which  they 
ought  to  be  governed.  If  that  is  so,  nothing  would 
appear  to  be  easier  than  to  examine  all  human  relations 
in  detail  in  order  to  distinguish  those  among  them 
which  require  legal  recognition,  and  then  find  what  law 
should  govern  them  in  all  cases  where  there  are  no  formal 
sources.  The  only  trouble  with  this  proposition  is  that 
in  trying  to  apply  this  method  one  will  soon  find  that  the 
assumption  was  accepted  a  little  hastily.  It  fails  in 
this  respect  at  least,  that  even  the  most  minute  study  of 
the  relations  of  life,  although  the  weighing  of  the  interests 


§5]  LAW  AS  A  MEANS  13 

involved  may  be  facilitated  thereby,  is  by  itself  powerless 
to  indicate  clearly  and  accurately  its  rule  of  law.  In  order 
to  make  the  method  practicable  one  needs  more  certain 
standards.  The  law  that  harmonizes  the  facts  must  be 
sought  outside  of  the  facts  themselves. 

Now  let  us  return  to  the  main  point  of  our  discussion. 
The  question  is,  how  can  we  create  by  a  scientific  effort 
a  sort  of  common  law,  general  in  its  nature  and  subsidiary 
in  its  function,  which  may  supplement  the  formal  sources 
when  they  fail,  and  give  a  general  direction  to  the  whole 
current  of  legal  life?  Will  the  law  so  found  be  an  im- 
mutable type,  or  will  it  vary,  at  least  in  some  of  its  parts, 
in  accordance  with  the  circumstances  of  the  times?  Will 
it  be  a  law  of  universal  application  or  will  it  not  exhibit 
certain  national  differences?  These,  however,  are  rather 
secondary  questions,  on  the  whole,  and  they  cannot  be 
solved  a  priori,  for  the  answers  will  depend  on  the  nature  of 
the  elements  of  which  this  necessary  common  law  is  com- 
posed. The  important  thing  above  all,  however,  is  to 
know  how  this  positive  common  law  may  be  constituted. 

To  solve  this  question,  a  seductive  idea  has  been 
proposed,  the  idea  of  scope  and  purpose,  or  the  law  as 
means  to  an  end.3  Starting  from  the  truth  suggested  by 
experience  and  ordinary  reasoning,  that  every  act  of 
will  depends  on  a  purpose  to  be  achieved,  and  observing 
further  that  every  system  of  law  has  for  its  subject- 
matter  principally  acts  of  human  will,  one  can  easily  come 
to  the  conclusion  that  such  a  system  ought  to  be  entirely 
dominated  by  practical  ends.  Hence  the  maxim  formu- 
lated by  Jhering:  the  end  to  be  sought  creates  the  entire 
body  of  law.  According  to  this  all  that  would  be  neces- 
sary to  find  the  rule  that  should  regulate  any  given 
relation  of  society  would  be  to  find  what  end  is  to  be 

3  Jhering,  "Der  Zweck  im  Recht"  [the  first  volume  of  \\-hich  is  trans- 
lated in  this  series  under  the  title  of  "Law  as  a  Means  to  an  End"]. 


14  GENY:   FREEDOM  OF  DECISION      [Cn.I 

accomplished.  However,  it  is  easy  to  see  that  such  a 
conception  presupposes  in  practice  that  the  ends  which 
are  to  be  attained  by  each  legal  rule  are  already  known. 
This  proposition,  again,  could  not  possibly  be  put  into 
practice  without  a  very  clear  and  definite  consciousness 
of  the  ultimate  ends  toward  which  human  life  is  tending. 
It  appears,  therefore,  that  this  maxim  may  be  a  very 
valuable  instrument  of  investigation  but  only  puts  the 
ultimate  solution  of  the  problem  further  off. 

How  then  shall  we  find  the  ultimate  standard  by  which 
to  measure  the  juridical  value  of  social  facts?  Without 
entering  upon  the  transcendental  regions  of  our  moral 
nature,  I  believe  that  we  shall  easily  come  to  an  agree- 
ment on  the  proposition  that  every  body  of  laws  should 
tend  toward  realizing,  in  the  life  of  humanity,  on  the  one 
hand  an  ideal  of  justice,  on  the  other  an  ideal  of  utility, 
meaning  by  the  latter  expression  that  which  by  common 
opinion  is  considered  as  promoting  the  welfare  of  the 
greater  number.  The  two  great  guide-posts  of  our  inves- 
tigation should  be,  therefore,  justice  and  general  utility. 
To  be  sure,  that  is  still  far  from  giving  us  complete  light 
on  the  subject,  because  the  two  ideas  so  represented  are 
of  themselves  nothing  but  empty  forms  which  must  be 
given  a  content  before  we  can  draw  out  of  them  all  we 
need  for  our  present  purposes. 

Precisely  at  this  point  is  the  place  for  the  idea  of  the 
"nature  of  things"  such  as,  according  to  my  view,  it 
should  be  understood.  It  is  not  enough  merely  to  con- 
sider and  analyze  in  detail  all  the  facts  of  the  life  of  our 
society,  to  observe  their  mutual  relations,  to  discern  how 
they  reciprocally  react  upon  each  other.  We  must  also 
boldly  rely  upon  our  moral  consciousness  and  our  reason- 
ing powers,  and  by  the  use  of  these  faculties  trace  the 
laws  which  govern  these  phenomena.  Thus  we  shall 
employ  all  our  resources  for  the  construction  of  a  truly 


§5]  LAW  AS  A  MEANS  15 

scientific  system  of  the  kind  of  common  law  of  which 
we  are  in  search. 

From  this  point  of  view  the  field  of  our  investigations 
becomes  definite  and  complete.  On  the  one  side,  we 
address  ourselves  to  reason  and  conscience  in  order  to 
discover  within  our  own  breasts  the  foundations  of  jus- 
tice; on  the  other 'side,  we  must  study  social  phenomena 
in  order  to  grasp  the  laws  which  harmonize  them  and 
the  principles  which  will  arrange  them  in  order.  Of  these 
two  tasks  which  we  must  perform,  the  last-named  finds 
a  firm  basis  in  what  may  be  called  the  nature  of  positive 
things,  which  in  their  totality  form  what  one  might 
call  the  atmosphere  of  social  life.  The  other  rests  on  a 
more  recondite  foundation,  it  cannot  be  attacked  by 
observation  and  the  experience  of  the  senses,  but  never- 
theless forms  one  of  the  necessary  conditions  of  the  prac- 
tical working  of  the  law.  Attempts  to  resolve  one  of 
these  factors  into  the  other  have  all  been  in  vain.  Not- 
withstanding various  prejudices  that  are  still  alive,  both 
have  continued  to  exert  their  influence  on  the  life  of  the 
law.  Well  convinced  as  I  am  of  their  necessity  I  have 
no  hesitancy  in  giving  to  each  its  proper  place  and 
function. 


II.     PRACTICAL  APPLICATION  OF   THE    PRINCIPLE  OF 

FREEDOM  OF  JUDICIAL  DECISION 
§  6.  The  Method  of  Free  Decision.  The  reader  will 
perhaps  wish  to  be  told  in  a  somewhat  more  direct  fashion 
how  the  method  of  free  legal  decision,  which  is  founded 
on  such  diverse  scientific  grounds,  will  work  out  in  such 
a  way  as  to  preserve  both  its  own  peculiar  characteris- 
tics and  the  necessary  degree  of  certainty.  He  will 
wish  to  see  what  results  may  be  expected  by  being  shown 
some  facts  learned  from  actual  experience. 


16  GENY:   FREEDOM  OF  DECISION      [CH.I 

In  regard  to  the  first  of  these  points,  it  must  be  said 
that  above  all  things  every  jurist  must  become  as  clear 
as  possible  in  his  own  mind  on  the  problem  of  what  con- 
stitutes his  peculiar  function  in  the  life  of  society. 
When  he  has  become  fully  conscious  of  the  nature  of  his 
task,  he  will  find  in  that  very  consciousness  the  best 
guide  to  conduct  him  straight  towards  the  clearly  con- 
ceived goal.  Now  it  cannot  be  repeated  too  often  that 
legal  science  is  essentially  a  science  of  action,  having  no 
possible  purpose  except  that  of  finding  the  necessary 
rules  for  the  government  of  certain  human  relations  by 
external  social  sanctions.  It  is  based  on  facts  of  social 
life  which  it  aims  to  order  and  arrange  in  such  a  way 
that  the  consequences  flowing  from  them  are  those  which 
are  socially  desirable. 

Consequently,  legal  science  must  first  of  all  try  to 
analyze  the  human  facts  into  their  ultimate  elements. 
As  it  cannot  master  these  elements  without  arranging 
them  in  certain  general  series  and  reducing  them  to  cer- 
tain types,  analysis  must  necessarily  be  supplemented  by 
classification,  which  must  already  show  more  or  less 
clearly  some  definite  goal.  The  conception  of  this  goal 
will  become  still  clearer  and  bring  the  final  result  into 
closer  view,  when  the  rule  has  been  established  which 
ought  to  govern  the  relations  so  analyzed  and  classified. 
To  find  this  rule  for  the  government  of  the  facts  is  the 
peculiar  work  of  legal  science.  Although  the  facts 
themselves  will  in  part  suggest  the  rule,  yet  its  real  origin 
must  be  sought  in  a  superior  order  of  ideas  which  can 
be  discovered  only  by  an  effort  of  reasoning. 

I  am  very  far  from  depreciating  the  importance  of 
simple  observation  of  social  facts;  I  do  not  even  hesitate 
to  give  to  it  the  first  place  among  the  indispensable 
elements  of  juridical  method,  without  which  it  would  be 
impossible  even  to  put  the  problems  correctly.  Yet  this 


§6]  METHOD  OF  FREE  DECISION  17 

alone  could  not,  as  has  sometimes  been  contended,  bring 
us  to  the  desired  goal  of  our  science,  not  even  if  we 
join  to  it  rational  classification.  We  need  also  a  process 
of  reasoning  which  starts  from  an  intuition  supplemented 
by  the  feeling  for  what  is  just,  and  arrives  at  exact  con- 
clusions by  a  series  of  deductions  under  the  constant 
guidance  and  control  of  practical  common  sense. 

In  administering  the  law  one  is  obliged  first  of  all  to  dis- 
cover some  general  and  abstract  rule  to  be  applied  to  the 
special  combinations  of  concrete  facts  which  actual  life 
produces.  In  all  cases  the  judge  should  therefore 
start  from  what  would  be  the  normal  rule.  That  means 
he  should  first  propose  to  himself  the  most  general  rule 
applicable  to  the  state  of  facts  before  him  as  a  type;  he 
should  contemplate  both  the  conditions  giving  rise  to 
the  rule  and  the  results  flowing  from  it  without  regard  for 
any  unusual  features  or  anticipation  of  any  but  the 
probable  consequences,  except  in  so  far  as  these  un- 
usual features  or  consequences  arise  from  the  particular 
nature  of  the  facts  themselves.  These  will  have  to  be 
considered  in  selecting  the  rule  itself. 

Moreover,  we  must  not  forget  that  the  free  decision  of 
the  judge  only  extends  to  the  cases  where  the  formal 
sources,  be  they  statutes  or  custom,  fail  him.  The  exer- 
cise of  his  freedom  is  broad  or  narrow,  and  the  results  of 
his  reasoning  are  more  or  less  certain,  according  as  he  is 
able  to  base  it  on  analogy,  or  on  elements  in  the  facts 
which  suggest  an  established  view  of  society,  or  whether 
in  the  absence  of  all  positive  support  he  is  left  altogether 
to  his  own  judgment. 

Even  within  the  limited  sphere  so  described,  it  does 
not  seem  to  me  that  free  scientific  legal  decision  can 
create  legal  rules  with  the  same  latitude  as  that  belong- 
ing to  statute  or  custom.  Without  stopping  to  indicate 
all  the  limitations  surrounding  its  creative  capacity, 


18  GENY:   FREEDOM  OF  DECISION      [Cn.I 

it  will  suffice  for  me  to  point  out  two  lines  of  thought 
which,  among  a  good  many  others,  seem  to  justify  my 
assertion.  On  the  one  hand,  some  relations  are  governed 
by  general  principles  depending,  sometimes  only  latently, 
on  our  formal  legal  arrangement  in  so  complete  and 
exclusive  a  manner  that  there  remains  no  opening  for 
free  legal  decision  without  going  outside  of  its  proper 
functions  and  exceeding  its  province  within  the  general 
conditions  of  social  life  as  they  actually  exist.  Thus  it 
would  seem  to  me  that  a  court  could  not  impose  in 
this  manner  a  legal  incapacity  (over  and  beyond  the 
recognition  of  a  natural  capacity  already  existing) 
or  an  artificial  restriction  on  the  liberty  of  contract; 
nor  could  it  thus  create  a  privilege  in  contravention 
of  the  principle  of  equality  before  the  law.  Nor  would 
it  be  possible  to  make  by  free  legal  decision,  according  to 
the  methods  of  legal  science,  detailed  rules  such  as  are 
required  for  the  exercise  of  certain  rights,  for  instance 
the  regulation  of  the  manner  of  proving  certain  facts, 
or  what  is  to  be  regarded  as  legal  publication  or  notice, 
the  forms  of  legal  transactions,  prescription,  limitations, 
forfeitures,  and  many  similar  things.  Speaking  broadly, 
everything  which  constitutes  the  outward,  and  if  one 
may  say  so,  moldable  shell  of  the  law,  is  outside  of  the 
realm  of  free  decision  and  must  be  regulated  exclusively 
by  statute  or  custom. 

§  7.  The  Liberal  Use  of  This  Method.  In  order  to  shed 
light  on  the  practical  working  of  this  method  and  to  show 
its  results,  this  would  be  the  place  for  its  application  to  a 
number  of  selected,  concrete  cases  from  which  its  actual 
working  could  be  learned.  It  is  not  possible,  however, 
in  so  general  a  study  of  so  vast  a  subject  as  we  are  making, 
to  furnish,  at  this  point,  illustrations  of  the  argument  I 
have  offered  above.  For  such  illustrations  would  not 
demonstrate  the  truth  of  our  proposition  sufficiently, 


§7]  KINDS  OF  LEGAL  RULES  19 

unless  the  facts  were  analyzed  most  minutely'to  the  last 
details.  I  shall  be  obliged,  therefore,  to  confine  myself 
for  the  present,  by  the  aid  of  what  others  have  already 
done  and  adding  a  few  personal  observations  to  what  has 
already  become  an  acknowledged  part  of  legal  science,  • 
to  calling  attention  to  certain  important  theories.  The 
method  of  free  decision  on  the  basis  of  legal  science, 
such  as  I  have  briefly  explained,  may  be  presumed, 
a  priori,  to  be  capable  of  suggesting  probable  solutions 
regarding  the  problem  of  supplementing  the  written  law 
which  by  itself  does  not  suffice  for  the  needs  of  daily  life. 
Moreover,  I  do  not  claim  any  intention  of  deciding  the 
whole  matter  in  a  manner  sufficient  for  a  systematic 
treatise.  I  merely  wish  to  see,  if  possible,  a  little 
progress  made,  without  taking  any  sides  regarding  the 
ultimate  solution  of  problems  which  would  require 
investigations  which  I  cannot  undertake.- 

In  order  to  limit  my  task  and  at  the  same  time  make 
it  more  definite,  I  shall  take  all  the  following  observa- 
tions (which  will  necessarily  be  incomplete  and  more  or 
less  cursory)  from  a  field  which  one  may  describe  as 
lying  in  the  very  center  and  constituting  the  most 
typical  portion  of  private  law,  —  the  rules  relating  to 
transactions  between  living  persons,  affecting  estates  of 
various  kinds. 

This  whole  vast  subject,  and  for  that  matter  all  other 
topics  in  private  law,  may,  as  it  seems  to  me,  be  treated 
from  the  point  of  view  of  three  different  orders  of  ideas, 
to  wit: 

Sometimes  the  regulation  of  inheritable  interests  eman- 
ates from  the  free  and  conscious  wills  of  persons  who 
are  capable  of  binding  themselves  by  contracts.  The 
positive  law  has  nothing  to  do  with  it  except  by 
recognizing  the  evidence  of  such  acts  of  will  as  evidence 
of  legal  transactions.  In  such  cases  we  have  nothing  to 


20  GENY:   FREEDOM  OF  DECISION      [Cn.I 

do  except  to  determine  on  what  terms  and  to  what  extent 
these  persons  have  bound  themselves;  after  that,  we 
must  find  out  what  the  subject-matter  amounts  to; 
and  possibly  we  must  supplement  the  acts  of  parties,  by 
applying  legal  presumptions  or  by  interpretation  of  the 
terms. 

At  other  times  it  will  happen  that  the  will  of  the 
parties  cannot  become  effective  because  it  is  repugnant 
to  the  requirements  of  social  order.  In  such  cases  the 
law  must  step  in  to  place  limitations  on  the  will  of 
individuals,  or  to  frustrate  it  altogether.  In  such  cases 
an  overruling  and  irresistible  power  substitutes  its  author- 
ity for  that  of  a  voluntary  arrangement  which  it  pro- 
hibits. The  positive  law  itself  makes  here  those  rules 
which  it  opposes  to  the  divergent  wills  of  individuals  so 
as  to  govern  or  restrain  them. 

Finally,  there  are  cases  where  there  is  not,  or  even 
cannot  possibly  be,  any  action  of  conscious  .wills.  In- 
stead there  are  facts  or  circumstances  regarding  which  the 
direct  influence  of  free  human  action  cannot  be  con- 
ceived, or  at  least  is  not  exercised.  As  a  consequence, 
it  becomes  the  function  of  the  law  itself  to  regulate  those 
interests  which  in  their  nature  are  independent  of  the 
wills  of  individuals. 

To  these  three  orders  of  ideas  correspond  three  kinds 
of  legal  rules,  which  are  fairly  distinct  from  each  other: 
one  kind  merely  guides  or  supplements  individual  acts 
of  will;  the  second  embodies  legal  commands  or  prohi- 
bitions; the  third  constitutes  simply  regulations  of  an 
external  sort. 

As  our  social  organization  is  actually  constituted,  we 
shall  find  that  each  of  these  three  forms  of  legal  rule  is 
governed  by  a  general  and  essential  principle  in  harmony 
with  the  object  which  each  class  of  rules  has  in  view. 
Each  set  of  rules,  in  fact,  is  the  outgrowth  of  its 


§7]  KINDS  OF  LEGAL  RULES  21 

principle.  I  think  one  may  reduce  these  three  principles 
to  a  simple  formula  in  accordance  with  our  most  usual 
terminology  in  this  manner:  1.  The  principle  of  auto- 
nomous will.  2.  The  principle  of  public  order  or  superior 
interest.  3.  The  principle  of  equilibrium  of  private 
interests. 

To  be  sure,  these  principles,  which  in  practice  will 
often  combine  and  interlace  with  each  other,  are  found 
to  animate  our  whole  system  of  law,  and  can  be  inferred 
also  from  its  formal  sources,  especially  the  codes,  in  so 
far  as  these  contain  formal  rules  relating  to  each  of  the 
spheres  indicated  above.  However,  here  as  everywhere, 
the  formal  sources  are  not  sufficient  for  the  purposes  of 
the  administration  of  the  law  in  its  entirety.  Where 
they  are  mute  or  incomplete,  free  scientific  investigation 
must  supplement  them  and  find  the  rule  which  governs 
such  relations  in  accordance  with  the  method  I  have 
proposed  above.  Now  it  seems  to  me  that  a  few  brief 
considerations  will  make  it  easily  intelligible  how  the 
application  of  this  method  will  help  the  law  to  make  real 
and  truly  scientific  progress. 

§  8.  The  Autonomy  of  Individual  Will  Explained. 
In  the  domain  of  individual  activity,  seeking  its  own 
ends,  the  modern  law  performs  its  proper  functions 
best  by  allowing  full  independence  so  long  as  such  activi- 
ties do  not  come  into  conflict  with  superior  interests. 
This  principle  of  the  autonomy  of  the  individual  will 
developed  gradually  and  unnoticed  from  the  time 
when  the  ancient  social  forms  were  disappearing.  It 
was,  in  our  country  and  in  civil  relations  at  least,  em- 
phasized by  the  decay  of  primitive  formalism,  beginning 
about  the  thirteenth  century.  It  continued  to  develop 
without  interruption,  but  is  seen  at  the  present  day  to  be 
only  the  expression  of  the  necessary  condition  of  our 
whole  social  organization.  One  may  say  that  it  is 


22  GENY:   FREEDOM  OF  DECISION      [Cn.I 

contained,  by  implication,  in  certain  provisions  of  our 
written  public  law;  in  its  broadest  form,  perhaps,  in 
section  4  of  the  Declaration  of  Rights  of  1789,  which 
reads:  "Liberty  consists  in  the  right  of  doing  anything 
which  does  not  injure  another."  At  any  rate,  the  authors 
of  the  Civil  Code  have  recognized  it  in  the  most  concrete 
manner  by  enacting  it  into  law  as  the  freedom  of  private 
contract,4  or  perhaps  one  may  say  that  they  have  done 
so  in  a  still  broader  fashion  by  establishing  the  freedom 
of  legal  transactions. 

All  this  may  appear,  in  our  day,  as  quite  beyond  dis- 
pute. It  may  be  different,  however,  when  it  comes  to 
putting  this  principle  into  effect  to  its  full  extent,  and 
to  developing  its  essence  until  it  penetrates  to  the  very 
heart  of  our  daily  life,  or  even  when  it  is  merely  a  ques- 
tion of  expressing  the  applications  of  the  principle  with 
that  degree  of  certainty  which  practical  affairs  demand. 
Is  it  always  true  that  in  such  cases  we  interpret  the  law 
with  a  sufficiently  deep  and  subtle  understanding  of  the 
social  and  psychological  elements  on  which  the  formula 
of  the  autonomy  of  the  will  must  be  based  and  from 
which  its  application  takes  its  life?  May  one  not  imagine 
that  there  may  be  new  and  beneficial  applications  of  the 
principle  discovered  by  a  more  unhampered  study  of 
these  elements? 

Take  the  notable  case  of  a  legal  transaction  validly 
performed  and  unquestionably  recognized  by  the  law, 
let  us  say  a  contract  if  you  will.  While  we  emphasize, 
in  principle,  the  power  of  individual  wills  which  con- 
stitutes it,  yet  are  we  not  often  harking  back  to  and 
docilely  accepting  the  consequences  of  the  Roman  cate- 
gories which,  as  we  must  admit,  still  dominate  on  the 
whole  our  written  law  in  regard  to  these  subjects? 
Although  these  categories  may  quite  legitimately  continue 

«  See  sections  537,  par.  1;  1134;  1156  seq.,  Civil  Code. 


§8]  AUTONOMY  OF  WILL  23 

to  be  used  as  throwing  light  on  the  real  intentions  of 
the  parties,  we  ought  not  to  forget  that  in  our  day  the 
statutory  provisions  based  on  these  categories  are  to  be 
taken  merely  as  supplementing  the  actual  intentions 
of  the  parties.  They  are  never  mandatory,  but  on  the 
contrary  may  be  modified  where  the  actual  facts  suggest 
the  propriety  of  such  modification.  We  may  even  be 
justified  in  overcoming  them  by  presumptions  incon- 
sistent with  them,  whenever  the  circumstances  of  a  case 
show  that  this  would  be  proper.  At  any  rate,  we  may 
and  should  establish  new  rules  to  supply  what  is  omitted 
in  the  statutes  and  the  customary  law,  in  order  to  put 
into  full  effect  the  principle  of  the  autonomy  of  the  will 
of  the  parties.  Furthermore,  we  must  remember  that 
the  traditional  categories  do  not  comprise  everything; 
that  it  was  quite  possible  for  the  parties  to  agree  upon 
something  "sui  generis,"  provided  only  that  higher 
rights,  and  especially  the  vested  rights  of  third  parties, 
are  not  infringed  thereby. 

In  this  way  it  has  been  possible,  although  the  Code  says 
nothing  about  it,  to  allow  in  our  modern  French  law  the 
validity  of  a  contract  for  substitution  of  debtors  with  the 
consent  of  the  two  parties  concerned,  in  such  manner 
that  the  first  debtor  may  pass  the  debt  on  to  the  second 
for  payment,  without  the  previous  consent  of  the  creditor, 
although  of  course  the  latter  cannot  be  bound  thereby. 
Similarly,  the  doctrine  will  no  doubt  find  favor  that  the 
mere  will  of  the  parties  may  establish  novel  kinds  of  rights 
"in  rem,"  provided  only  that  they  do  not  offend  against 
the  fundamental  principles  of  our  social  order.  In  the 
same  way  it  will  be  easily  possible  to  add  to  the  forms 
of  property  come  down  to  us  from  the  Romans,  new  ones 
based  simply  on  the  free  agreement  of  the  parties,  es- 
pecially new  forms  of  ownership  in  common  adapted  to 
our  economic  needs,  new  forms  of  trust  described  in  the 


24  GENY:   FREEDOM  OF  DECISION      [CH.  I 

deed  of  trust  itself ;  there  may  be  also  new  forms  of  ease- 
ments besides  the  servitudes  expressly  recognized  by  the 
law,  and  other  ways  of  establishing  a  divided  ownership, 
whereby  the  utilization  of  property  may  be  diversified 
and  its  value  increased.  All  that  may  be  possible  simply 
by  further  developing  the  principle  of  autonomous  wills, 
provided  always  that  the  rights  of  third  parties  are  not 
affected  and  that  the  interests  of  the  commonwealth  are 
protected.  I  do  not  fail  to  recognize  that  frequently 
these  general  reservations  will  require  considerable  re- 
strictions, and  that  sometimes  the  method  of  free  decision 
will  not  suffice  to  formulate  these  restrictions  independ- 
ently of  legislation.  That  method,  however,  will  at  least 
be  capable  of  preparing  the  way  for  the  intervention  of 
other  sources  of  positive  law,  such  as  statutes  and  custom, 
which  may  complete  the  body  of  rules  already  outlined 
by  the  .use  of  the  free  decision  method.  I  f  anybody  should 
hesitate  before  the  practical  difficulties  in  the  way  of 
applying  that  method  as  here  suggested,  he  would  not, 
at  least,  decline  to  interpret  the  contracts  which  are  cur- 
rently made  in  the  course  of  business  without  constantly 
referring  them  to  some  one  of  the  legally  recognized 
types,  and  would  prefer  to  uphold  them  directly  in 
accordance  with  the  principle  of  the  autonomy  of  the  will. 
Now,  the  will  of  the  parties,  when  it  finds  no  typical 
formulas  which  it  can  use,  will  proceed  in  accordance  with 
the  moral,  psychological,  economic,  briefly,  the  social 
circumstances  under  which  it  tries  to  accomplish  its 
aims.  Any  doubt  regarding  the  intention  of  the  parties 
can  be  solved  only  by  presumptions  based  upon  an  ex- 
amination of  these  circumstances.  Where  there  is  no 
presumption  regarding  the  intention  of  the  parties  in  the 
strict  legal  sense,  it  will  be  incumbent  upon  the  court  to 
base  its  conclusion  on  a  consideration  of  all  the  interests 
to  be  considered.  A  balance  between  these  interests 


§8]  AUTONOMY  OF  WILL  25 

would  establish  a  probability  that  such  was  the  real 
intention  of  the  parties,  and  would  properly  take  the 
place  of  direct  evidence  regarding  their  intention 
where  that  cannot  be  had.  One  can  readily  see 
that  an  almost  boundless  field  for  the  activity  of 
the  method  of  free  decision  is  here  opened  up;  espe- 
cially if  the  courts  will  attach  all  the  weight  that 
belongs  to  it  to  the  doctrine  of  good  faith,  which  we 
may  say  constitutes  in  our  modern  law  the  pivot 
around  which  the  play  of  autonomous  individual  wills 
must  revolve. 

I  desire,  however,  to  call  attention  to  still  another 
point  in  connection  with  the  same  general  theory. 

§  9.  The  Extent  of  the  Principle  of  the  Autonomy  of 
Individual  Will.  In  relation  to  legal  transactions,  it  is 
not  enough  to  show  the  consequences  growing  out  of  the 
principle  of  the  autonomy  of  the  will.  It  is  also  necessary, 
and  in  fact  that  is  the  first  task  of  the  court  where  a 
case  is  to  be  decided  on  the  principles  of  free  decision,  to 
analyze  the  elements  constituting  the  principle  and  to 
define  its  main  outlines.  What  are  the  circumstances 
under  which  the  mere  will  of  the  parties  makes  the  law 
of  the  case?  Some  people  have  erred  by  assuming  that 
in  order  to  solve  this  problem  one  had  but  to  consider 
the  intentions  of  the  parties  and  the  circumstances 
from  which  these  can  be  inferred.  That  is  plainly  a 
begging  of  the  question,  and  a  confusion  of  the  effects 
with  the  conditions  from  which  they  arise.  In  order  to 
determine  the  latter,  aside  from  the  expressions  of  the 
parties  to  the  transaction  themselves,  one  must  obviously 
take  into  account  both  the  social  and  individual  interests 
involved.  These  interests  must  not  only  be  manifest 
and  firmly  insisted  on,  without  psychological  duress,  so 
to  speak,  and  with  a  degree  of  consciousness  psychologic- 
ally certain,  but  also  make  it  necessary  that  the  positive 


26  GENY:   FREEDOM  OF  DECISION      [Cn.l 

law  will  recognize  without  hesitancy  the  obligatory  char- 
acter of  the  transaction. 

If  we  could  only  bring  ourselves  to  be  guided  by  these 
ideas,  and  rid  ourselves  at  the  same  time  of  the  obsession 
of  abstract  concepts,  which  here  as  everywhere  is  per- 
nicious, we  might  perhaps  succeed  in  extending  very 
notably  our  theory  of  the  formation  of  contracts.  Es- 
pecially with  regard  to  questions  for  the  solution  of  which 
the  statute  really  affords  no  help  at  all,  as  for  instance 
contracts  between  absent  parties,5  would  we  not  soon 
learn  to  add  to  the  merely  psychological  considerations, 
which  are  too  often  made  the  only  basis  of  our  theory, 
other  considerations  drawn  from  a  wider  reality?  Such 
other  considerations  would  show  all  the  more  perfectly 
what  the  requirements  of  practical  life  and  the  motives 
inspiring  it  may  be,  because  they  would  tend  away  from 
rigid  rules  and  be  fit  to  vary  and  supplement  the  con- 
clusions drawn  from  the  underlying  principle  without 
failing  to  give  it  due  effect,  so  as  to  satisfy  all  the  interests 
involved.  I  believe  that  it  is  not  difficult  to  show  how 
the  modern  development  of  the  law  even  now  tends  in 
this  direction.  One  can  be  but  glad  of  this,  and  may  wish 
that  the  movement  become  still  more  decidedly  so,  when 
he  notices  also  in  some  recent  theoretical  works  an 
obvious  inclination  to  make  use  of  analogous  methods 
of  reasoning. 

In  a  similar  manner,  it  is  also  likely  that  the  law  will 
become  less  exacting  regarding  the  complete  and  perfect 
meeting  of  the  wills  which  our  all  too  rigid  theory  pro- 
claims necessary  in  order  that  there  shall  be  any  contract 
at  all.  As  a  matter  of  fact,  our  practice  in  this  regard  is 
not  at  all  in  agreement  with  our  theory,  but  rather  raises 
an  irresistible  protest  against  the  pretensions  of  our 
strict  logic,  although  we  may  pass  the  matter  over  in 

*  "Non  obstat,"  section  932,  line  2,  of  the  Civil  Code. 


§9]  AUTONOMY  OF  WILL  27 

silence.  For  instance,  our  theory  insists  that  the  subject- 
matter  of  a  contract  must  be  definitely  expressed  or  at 
least  that  it  must  be  definable  from  the  terms  of  the  con- 
tract itself;  yet  do  we  not  every  day  see  contracts  for 
piecework  entered  into,  without  any  definite  statement 
of  the  price  to  be  paid  for  the  completed  job?  Or  who 
would  think,  when  he  has  given  a  job  to  some  cabinet- 
maker or  locksmith  without  stipulating  for  the  compensa- 
tion, or  when  he  has  been  treated  by  a  physician  without 
first  agreeing  on  his  fee,  that  such  a  contract  could  not  be 
enforced  and  that  he  may  repudiate  his  obligation  be- 
cause the  sum  to  be  paid  had  not  been  fixed  beforehand 
or  could  not  be  ascertained  from  the  terms  of  the  con- 
tract itself?  We  know  well  enough  that  in  such  cases 
the  court  will  not  hesitate  to  complete  the  contract  the 
parties  have  left  defective.  I  suppose  that  it  will  be  said : 
Such  results  are  to  be  explained  by  the  fact  that  there 
was  a  tacit  understanding,  a  fixed  usage,  which  in  good 
faith  becomes  a  part  of  every  such  contract.  That  is 
precisely  what  I  insist  on,  that  the  influence  of  good 
faith,  which  inheres  in  the  making  of  every  contract, 
should  be  frankly  recognized;  I  am  persuaded  that  this 
new  element,  introduced  into  a  theory  which  heretofore 
recognized  nothing  but  logical  deductions,  would  have  a 
most  beneficial  effect  by  softening  its  outlines  and  making 
its  structure  less  narrow. 

Furthermore,  I  have  no  doubt  that  the  same  trend  of 
ideas  will  lead  us  to  recognize  this:  an  imperfect  and 
incomplete  understanding  between  two  persons  regarding 
the  essential  points  of  the  business  with  which  they  are 
mutually  dealing,  while  it  cannot  establish  any  binding 
obligation,  according  to  the  strict  doctrine,  may  yet,  in 
a  number  of  cases,  be  treated  like  an  actual  contract,  and 
will  not  be  left  altogether  without  legal  possibility  of  en- 
forcement. Here  again  some  very  practical  observations 


28  GENY:   FREEDOM  OF  DECISION      [CH.I 

will  give  us  the  foundation  for  some  useful  steps  for- 
ward in  the  development  of  our  science.  It  will 
presently  occur  to  us  to  ask  whether  in  fact  the  meeting 
of  the  minds  is  ever  exact.  Perhaps  the  result  of  our 
investigation  will  be  that  we  shall  attain  a  clearer  view 
of  the  following  truth,  of  which  we  are  certainly  not 
ignorant  even  now,  but  which  we  have  hesitated  to  adopt 
in  its  entirety.  The  theory  of  contract,  which  has  here- 
tofore  been  dominated  altogether  by  the  psychological 
;  idea  of  agreement,  will  have  to  look  at  that  idea  hereafter 
in  the  light  thrown  upon  it  by  the  facts  of  life  in  society. 
In  other  words,  it  is  not  so  important  for  the  lawyer  to 
know  under  what  conditions  it  is  metaphysically  incon- 
testable that  the  minds  of  the  parties  have  met,  as  to 
know  under  what  circumstances  the  approach  of  their 
wills  is  close  enough  to  deserve  being  upheld  by  the  law. 
After  we  have  reached  this  point,  it  seems  clear  to  me  that 
the  problem  can  be  further  solved  only  by  a  detailed 
examination  of  the  nature  of  the  circumstances  surround- 
ing the  case;  and  this  should  be  made  not  merely  from 
the  point  of  view  of  individual  psychology,  but  even 
more  from  that  of  social  psychology,  of  ethical  and 
economic  requirements,  and  more  generally  still,  of  all 
considerations  which  civilized  life,  interpreted  by  the 
aid  of  science,  may  suggest. 

§  10.  The  Same  Subject  Continued.  Now  that  we 
have  come  so  far,  I  imagine  that  we  cannot  very  well 
avoid  touching  upon  a  delicate  question  which  has  but 
recently  been  well  formulated,  and  which  we  shall 
treat  by  a  method  freer  from  prejudice  and,  I  trust,  also 
more  fruitful  than  that  which  has  heretofore  been  em- 
ployed. Is  not  the  autonomy  of  individual  will  a  part  of 
our  positive  law  elsewhere  as  well  as  where  it  is  exhibited 
in  the  making  of  a  contract,  properly  so  called?  Is  it 
not  even  more  distinctly  present  in  legal  acts  that  issue 


§101  AUTONOMY  OF  WILL  29 

from  a  single  will  affecting  living  persons?  Or,  to  employ 
a  more  common  and  at  the  same  time  clearer  phrase,  may 
not*  a  simple  promise,  expressing  but  the  will  of  one 
party,  become  the  basis  of  a  legal  obligation,  aside  from 
all  questions  of  acceptance? 

If  first  we  turn,  for  the  solution  of  this  question,  to  our 
formal  sources  of  law  as  they  are  now  actually  in  force, 
we  shall  have  to  admit,  I  think,  that  these  do  not  take  us 
very  far. 

Of  clearly  established  customary  law,  I  believe,  we 
cannot  speak  at  all,  in  modern  days,  so  far  as  this  subject 
in  any  general  aspect  is  concerned.  As  for  the  written 
law,  it  would  seem  pretty  difficult  to  find  therein  any 
positive  denial  of  the  legal  effectiveness  of  a  one-sided  J 
act  of  will,  even  aside  from  testamentary  dispositions. 
We  need  not  speak  of  certain  declarations  with  legal 
consequences,  such  as  the  legitimization  of  an  illegiti- 
mate child,  the  acceptance  of  succession,  the  renuncia- 
tion of  succession,  or  of  community  of  property  [between 
husband  and  wife],  or  the  offer  of  payment  of  recorded 
mortgages  by  a  new  purchaser  of  the  land  —  all  of  wiiich 
transactions  imply  in  their  very  nature  that  there  is  but 
one  party  to  them.  Our  law  knows  another  class  of  such 
acts  which  all  have  the  characteristic  that  one  person 
becomes  richer  by  the  independent  will  of  another  — 
such  as,  for  instance,  the  renunciation  of  various  rights, 
like  a  usufruct,  a  mortgage  debt,  and  various  sorts  of 
easement.  In  these  cases  the  statute  might  easily  have 
made  the  effect  of  the  act  dependent  on  acceptance  by 
the  beneficiary.  I  know  the  answer  will  be  that  these 
are  exceptions  to  the  ordinary  rule,  which  were  intended 
as  such  by  the  legislature,  as  also  in  the  case  of  occupa- 
tion and  analogous  acts;  some  persons  will  even  go  so 
far  as  to  declare  it  impossible  that  the  act  of  one  person, 
done  with  that  very  purpose  in  view,  and  with  the 


30  GENY:   FREEDOM  OF  DECISION      [Cn.I 

intention  of  being  bound  thereby,  can  create  an  obligation 
on  the  part  of  another  person.  However,  if  one  were  to 
inquire  into  the  reason  for  this  common  opinion  or*  the 
explanation  for  this  widely  spread  prejudice,  he  would 
find  it  difficult  to  discover  anything  except  that  there  is 
no  provision  in  our  statutes  expressly  authorizing  the 
creation  of  a  right  by  the  one-sided  act  of  an  individual, 
and  that  such  silence  is  sufficient  to  prohibit.  The 
implied  reasoning  may  perhaps  be  expressed  still  more 
exactly  in  this  fashion:  the  Civil  Code,  by  enumeration, 
limits  the  sources  from  which  obligations  may  be  de- 
rived.6 This  enumeration  does  not  mention  a  one-sided 
act  of  will,  consequently  such  an  act  cannot  be  the  source 
of  an  obligation.  I  venture  to  say  that  such  arguments 
may  appear  quite  incontestable,  and  yet  they  do  not 
convince  me.  I  need  not  discuss  the  point  that  perhaps  a 
one-sided  promise  may  after  all  be  contained  in  one  of  the 
enumerated  classes  of  section  1370,  which  are  decidedly 
vague  and  general.  I  should  first  like  to  know  on  what 
ground,  in  our  modern  law,  the  assertion  can  be  based 
that  the  statute  enumerates  all  the  sources  from  which  an 
obligation  may  spring  and  excludes  all  others.  In  other 
words,  as  I  deny  both  the  major  and  the  minor  premise 
of  the  syllogism  held  up  to  me,  I  must  have  serious  doubts 
about  the  conclusion. 

Nor  would  it  be  possible  to  aid  or  fortify  the  above 
argument  by  saying  that  the  theory  of  the  Code  which 
bases  contracts  on  the  consent  of  the  parties7  necessarily 
excludes  the  idea  that  a  simple  promise  can  bind  the  prom- 
isor even  before  it  has  been  accepted.  We  may  admit 
that  the  legislature  intended  such  a  result  under  ordinary 
circumstances  in  the  case  of  an  offer  to  make  a  contract ; 
that,  however,  amounts  merely  to  this, — that  in  the 

•  Book  3,  title  3,  and  section  1370,  Civil  Code. 
'  Sections  1 108  seq. 


§10]  AUTONOMY  OF  WILL  31 

absence  of  ulterior  reasons,  such  an  offer  is  not  binding. 
One  cannot  legitimately  draw  therefrom  the  conclusion 
either  that  the  quality  of  not  being  binding  is  essential 
to  the  very  nature  of  such  an  offer,  or,  still  less,  that 
under  all  circumstances  whatsoever  a  declaration  of 
intention  to  bind  oneself,  as  long  as  it  remains  a  mere 
promise,  is  ineffective  and  inoperative.  Briefly,  from 
a  strictly  legal  standpoint  and  according  to  the  rules  of 
sane  interpretation,  if  one  does  not  want  to  go  beyond 
the  thought  and  intention  of  the  legislator,  he  must 
hold  that  the  latter,  never  having  thought  of  the  ques- 
tion raised  by  us,  cannot  have  intended  to  solve  it. 
Or  even  we  might  admit  that  he  must  be  assumed  to  have 
thought  of  it  and  decided  it  negatively  in  the  recesses 
of  his  mind  and  subconsciously,  as  it  were,  because  he 
must  have  been  under  the  influence  of  a  historical  tradi- 
tion. That,  however,  is  rather  vague  in  itself,  and  such 
an  unexpressed  and  secret  meaning  cannot  be  held  to  have 
any  force  for  the  interpretation  of  the  rule.  Conse- 
quently, as  long  as  both  the  statute  and  the  customary  law 
are  silent  on  the  point,  we  must  solve  the  difficulty  by  the 
method  of  free  decision  on  the  basis  of  scientific  inquiry. 
Now,  when  we  have  thus  been  authorized  to  take  pos- 
session of  the  field,  shall  we  unhesitatingly  answer  the 
question  in  the  affirmative,  as  is  the  wont  of  bold  reform- 
ers, possibly  by  dwelling  upon  the  unlimited  freedom  of 
the  human  will,  the  sovereignty  of  individual  volition? 
Or  perhaps  by  insisting  on  the  needs  of  society  under  the 
new  conditions  created  by  modern  civilization,  which 
demand  imperiously  that  everybody  shall  be  allowed  as 
he  will  to  take  advantage  of  promises  by  which  another 
has  chosen  to  bind  himself  by  his  free  will?  That  would 
be,  in  my  opinion,  to  go  far  beyond  the  mark,  and  to 
expose  our  new  idea  to  a  shock  from  which  it  would  never 
recover.  The  most  one  can  really  say  on  this  point  in  a 


32  GENY:   FREEDOM  OF  DECISION      [CH.I 

general  way  is,  I  believe,  that  nothing  in  our  system  of 
positive  law  stands  in  the  way  of  holding  a  one-sided 
promise  binding,  and  that  the  binding  nature  of  such  a 
promise  even  follows,  prima  facie  at  least,  as  a  very 
natural  consequence  of  that  principle  of  the  autonomy 
of  the  will  which  is  the  outcome  of  our  modern  conditions 
of  society.  At  the  same  time,  there  is  also  no  reason 
why  absolutely  every  obligation  of  this  kind  should  be 
upheld.  Consequently,  and  because  in  practice  the  ques- 
tion will  always  be  what  particular  promises  of  this  kind 
ought  to  be  upheld  as  binding,  it  will  never  be  possible 
to  find  the  answer  without  a  close  investigation  of  the 
dangers  and  advantages  of  each  particular  promise  of 
this  nature. 

Now  we  understand  very  well  that  a  unilaterally 
expressed  intention  ought  never  to  be  enforceable  except 
when  it  was  seriously  and  firmly  held  with  the  con- 
scious desire  that  it  should  be  binding.  However,  in 
a  good  many  instances,  and  in  the  absence  of  some 
customary  or  statutory  form  of  expressing  the  intention, 
it  will  be  difficult  and  not  without  danger  to  hold  every 
promise,  where  the  promisor  at  the  time  wishes  to  be 
bound,  sufficiently  serious  and  firm.  It  will  be  wise, 
therefore,  to  scrutinize  carefully  the  character  of  such 
declarations  and  to  assess  them  at  their  true  psychological 
value.  Likewise,  even  where  the  firm  intention  cannot  be 
disputed,  one  would  not  be  able  to  appreciate  its  true 
legal  weight  without  first  determining  whether  there 
exists  a  real  interest  of  society  requiring  that  such  a 
declaration  be  binding  of  itself  without  waiting  until  the 
party  to  derive  the  benefit  therefrom  has  consented  and 
thereby  raised  it  to  the  dignity  of  a  contract  in  the  proper 
sense.  This  determination  will  be  the  result  of  an  inves- 
tigation of  the  moral,  political,  economic,  in  fine  all  the 
social,  advantages  of  such  promises. 


§10]  AUTONOMY  OF  WILL  33 

From  this  point  of  view,  we  shall  be  inclined  to  declare 
binding  not  all  one-sided  promises,  but  only  those  which 
seem  necessary  in  order  to  accomplish  certain  desirable 
social  ends  which  cannot  be  accomplished  in  any  other 
way,  provided  that  they  are  not  of  such  a  nature  as  to'/ 
create  an  uncertainty  regarding  the  title  to  property, 
which  is  above  all  other  things  destructive  of  credit. 
Such  binding  declarations  will  be,  no  doubt,  promises  to 
pay  for  services  rendered,  subscriptions  for  the  costs  of 
a  work  to  be  done  in  the  common  interest,  offers  made  in 
contemplation  of  a  future  contract,  provided  they  are 
made  with  sufficient  certainty;  and  perhaps  even  prom- 
ises for  the  endowment  of  benevolent  institutions,  pro- 
vided the  principles  of  our  public  law  are  properly 
observed. 

If  we  boldly  recognize  such  promises  as  binding  of  their 
own  force,  we  merely  carry  out 'and  follow  tendencies 
which,  after  all,  are  already  clearly  established  in  our 
legal  system.  For  instance,  in  our  private  law,  it  may 
be  true  that  the  one-sided  promise  of  compensation,  as 
in  the  case  of  finding  lost  property,  has  never  been  recog- 
nized except  on  the  ground  of  a  tacitly  implied  contract 
between  the  promisor  and  the  finder;  yet  the  law  does 
not  hesitate  to  recognize  rights  growing  directly  out  of 
a  mere  promise  in  other  relations.  At  any  rate,  the 
binding  character  of  an  offer  by  one  party  to  enter  into  a 
contract  is  at  present  frankly  recognized  during  the  time 
customarily  allowed  for  acceptance  by  the  other  side. 
Again,  the  same  is  true  in  the  case  of  commercial  paper 
payable  to  bearer,  independently  of  the  contract  from 
which  the  debt  originated ;  or,  in  the  cases  where  mort- 
gage liens  are  upheld  as  security  for  debts  payable  to 
uncertain  payees.  Finally,  the  principle  is  illustrated 
by  the  cases  where  undertakings  for  the  benefit  of  another 
are  upheld  although  there  is  no  principal  contract 


34  GENY:   FREEDOM  OF  DECISION      [Cn.  I 

actually  in  existence.  All  these  instances  show  plainly 
that  our  law  tends  to  go  beyond  the  narrow  horizon  of  the 
Civil  Code  and  to  admit  that  by  the  side  of  the  traditional 
classes  there  may  be  cases  of  binding  voluntary  obliga- 
tions outside  of  any  specific  contract. 

The  same  is  true  also  in  the  field  of  administrative  law. 
Here  many  of  the  requirements  of  the  law  of  civil  con- 
tracts are  disregarded  and  subscriptions  to  benevolent 
purposes  or  works  of  public  utility  are  much  more 
easily  held  binding ;  here,  where  legacies  to  undetermined 
recipients  of  charity  are  upheld  on  condition  that  the 
beneficiaries  can  be  made  certain,  even  actual  endow- 
ments by  one-sided  promise  are  possible  "inter  vivos"  on 
the  same  condition. 

When  we  extend  our  experimental  test  somewhat  and 
consider  the  same  problem  by  the  light  of  history  and 
comparative  legislation,  we  shall  find  a  decided  confir- 
mation of  our  reasoning  and  direct  observation.  We  shall 
see  that  even  the  Roman  law,  which  in  principle  rejects 
emphatically  the  recognition  of  a  one-sided  promise  as 
the  source  of  a  binding  obligation,  yet  admits  promises 
of  this  kind  as  civilly  binding  in  cases  where  a  religious  or 
public  interest  is  involved,  and  possibly  even  sometimes 
in  cases  of  purely  private  concern.  Other  legal  systems 
will  be  found  to  offer  different  instances  in  accordance 
with  the  peculiar  needs  of  their  time  and  circumstances. 
Finally,  the  most  recent  and  most  thoroughly  studied  of 
modern  legal  systems,  the  German  Civil  Code  of  1896, 
furnishes  us  what  might  be  called  the  type  of  an  actual, 
positive  system  of  this  kind,  which  is  quite  capable  of 
serving  as  a  model.  Is  not  all  this  proof  enough,  drawn 
from  the  actual  facts,  that  no  absolute  principle  of  logic 
commands  us  to  reject  &  priori  the  creation  of  valid 
rights  by  a  one-sided  exercise  of  will,  and  that,  quite  the 
reverse,  the  needs  of  legal  life  require,  not  that  all 


§10]  AUTONOMY  OF  WILL  35 

one-sided  promises  be  held  binding,  blindly  and  without 
distinction,  but  that  this  be  done  in  certain  carefully 
regulated  and  judiciously  selected  instances.  A  free 
investigation  of  all  the  circumstances  —  including  scien- 
tific data  as  far  as  possible  based  on  statistics  and  every 
other  means  of  learning  social  facts,  as  well  as  ethical, 
political,  and  economic  considerations — should  determine 
the  cases  and  conditions  in  which  in  the  actually  existing 
state  of  civilization  in  France  it  would  be  advisable  that 
the  power  of  autonomous  exercise  of  will  over  private 
relations  should  receive  this  extension,  and  technical 
considerations  of  law  should  be  utilized  merely  to  define 
these  instances  more  accurately. 

§  11.  The  Principle  of  Equilibrium  of  Interests. 
Finally,  however,  the  problem  of  the  limits  which  should 
be  assigned  to  the  principle  of  the  autonomy  of  the  will 
in  the  creation  of  individual  rights,  will  be  shown  to  be 
governed  largely  by  a  general  principle  which  constantly 
manifests  itself  also  in  all  those  legal  problems  which 
by  their  very  nature  cannot  be  within  the  jurisdiction  of 
the  direct  exercise  of  will  by  private  individuals,  or  which 
have  been  definitely  given  over  to  some  other  form  of 
regulation.  This  principle,  which  one  may  call  that  of  the 
equilibrium  of  the  interests  concerned,  must  be  the  guide 
of  the  courts,  as  it  should  be  that  of  the  legislator  and 
the  guardians  of  legal  custom,  in  all  those  cases  where 
there  is  no  sufficient  and  valid  agreement  between  the 
parties,  so  that  it  becomes  necessary  to  establish  auth- 
oritative rules  of  conduct  such  as  constitute  positive 
legal  order.  The  object  held  in  view  by  this  principle 
is  nothing  but  that  of  giving  the  greatest  possible  satis- 
faction to  the  wishes  of  the  various  parties  consistent 
with  the  realization  of  the  social  purposes  of  mankind. 
The  general  method  of  accomplishing  this  purpose  is 
to  recognize  all  the  conflicting  interests  concerned,  to 


36  GENY:   FREEDOM  OF  DECISION      [CH.I 

estimate  their  respective  force,  to  weigh  them,  as  it  were, 
in  the  scales  of  justice  so  as  to  give  the  preponderance 
to  the  most  important  of  them  tested  by  some  social 
standard,  and  finally  to  bring  about  that  equilibrium 
between  them  which  is  so  greatly  to  be  desired. 

It  will  readily  appear  that  the  legislator  also  proceeds 
in  the  same  way  when  he  enacts  provisions  intended  to 
supplement  or  regulate  private  acts,  if  one  analyzes  in 
detail  certain  statutory  provisions  in  cases  where  the 
conflict  of  interests  is  particularly  apparent.8  We  need 
not  speak  of  certain  traditional  doctrines  which  our 
modern  statutes  have  adopted  in  an  elliptic  form, 
such  as  the  theory  of  the  Pauline  action,  with  the  neces- 
sary conditions  under  which  it  may  be  maintained 
according  to  the  nature  of  the  deed  drawn  into  question 
(to  wit,  whether  it  was  given  for  a  consideration  or 
not),  and  the  good  or  bad  faith  of  the  defendant.9 
Apart,  however,  from  these  special  applications  of  the 
principle,  it  would  be  easy  to  show  how  the  same  legis- 
lative intention  reappears  in  the  greater  part  of  all  the 
doctrines  in  our  private  law,  even  in  those  which  are 
frequently  explained  on  purely  logical  grounds.  Such 
for  instance  is  the  theory  of  title  by  accession,10  of  set- 
off,11  in  which  logic  really  does  not  come  in  except 
secondarily  and,  so  to  speak,  as  the  technical  instrument 
of  equity,  which  itself  is  grounded  on  the  principle  of  the 
equilibrium  of  interests  which  in  all  these  subject-matters 
is  entirely  dominant. 

8  I  cite,  as  they  come  to  my  mind  at  random,  sections  549,  555,  1116, 
1238,  1240,  1299,  1377  line  2,  1384,  2037,  2131,  2265,  2279-2280  of  the 
Civil  Code  and  216  of  the  Commercial  Code,  as  examples  of  particular 
probative  value. 

•  See  section  1167  of  the  French  Civil  Code;  sections  446-447,  Com- 
mercial Code. 

>«  Sections  551-577,  Civil  Code. 
"  Sections  1289-1298,  Civil  Code. 


§11]  EQUILIBRIUM  OF  INTERESTS  37 

Free  legal  decision  on  the  basis  of  scientific  investiga- 
tion ought  to  do  within  its  own  field  what  the  written 
law  does  for  those  portions  of  the  law  which  have  seemed 
to  stand  in  need  of  more  definite  regulation.  Our  courts 
have  recognized  this  doctrine,  to  the  great  scandal  of 
certain  authors,  when  they  have  held  valid  in  favor  of 
third  parties  acts  of  an  heir-apparent  affecting  an 
estate  which  finally  does  not  go  to  him  —  at  least  in 
some  particularly  equitable  cases;  or  when  they  have 
established  a  whole  system  of  presumptions  in  aid  of  title 
by  prescription,  in  order  to  make  possible  or  easier  the 
proof  of  title  to  real  property;  and  similarly  when  they 
have  upheld  the  full  force  and  vigor  of  the  ancient 
adage:  "Quae  temporalia  ad  agendum  perpetua  ad 
excipiendum."  Is  not  the  same  thing  true  in  certain 
peculiarly  delicate  cases  of  conflicting  interests,  which 
have  been  very  happily  settled  in  actual  practice,  such 
as  those  growing  out  of  the  existence,  at  the  same  time 
and  in  the  same  property,  of  special  mortgages  and  gen- 
eral mortgages  of  prior  rank?  It  is  not  different  when 
the  statute  is  silent  or  ambiguous  and  the  courts  have  to 
decide  whether  the  surety  or  a  third  party  in  actual 
possession  of  the  land  mortgaged  for  the  guaranteed 
debt  are  to  be  subrogated  to  the  rights  of  the  mortgagor.12 
Again,  how  can  the  legal  maxims  applicable  to  such  mat- 
ters as  the  secrecy  of  confidential  letters,  the  ownership 
of  letters  sent,  or  the  right  to  use  a  family  name,  which 
can  be  understood  in  so  many  different  ways,  be  satis- 
factorily and  equitably  applied  except  by  balancing  all 
the  interests  involved  one  with  the  other?  As  a  matter 
of  fact,  the  tendency  recently  has  been  less  and  less  to 
refrain  from  accepting  such  a  method  of  interpretation, 
even  where  the  result  seems  to  run  counter  to  some 
positive  statute,  at  least  where  the  statutory  provisions 

12  As  provided  by  section  1251,  subs.  3  of  the  Civil  Code. 


38  GENY:   FREEDOM  OF  DECISION      [Cn.  I 

leave  an  opportunity  for  broad  construction  in  favor  of 
an  evident  equity.  Occasionally  the  courts  have  gone 
even  farther  in  the  direction  of  free  decision  and  for- 
gotten the  bounds  necessarily  set  to  the  creation  of  law 
by  this  method,  notably  in  those  cases  where  forms  of  lien 
have  been  recognized  for  which  there  was  no  provision 
at  all  in  the  statute. 

On  condition,  however,  that  such  excesses  be  avoided, 
of  committing  which  there  is  at  present  little  danger 
anyhow,  on  account  of  traditional  tendencies  to  the  con- 
trary, the  science  of  administering  the  law  could  not  do 
better  than  frankly  to  adopt,  where  the  formal  sources 
of  law  are  silent,  this  method:  to  seek  the  solution  of 
all  legal  questions,  which  necessarily  grow  out  of  the 
•conflict  of  various  interests,  by  means  of  an  accurate 
estimating  of  the  relative  importance  and  a  judicious 
comparison  of  all  the  interests  involved,  with  a  view  to 
balancing  them  against  each  other  in  conformity  with  the 
interests  of  society.  For  example,  in  this  manner  it 
would  no  doubt  be  possible  to  solve  one  of  the  most  im- 
portant problems  in  law,  which  in  one  form  or  the  other 
is  liable  to  arise  in  every  lawsuit,  the  importance  of  which 
Jhering  has  emphasized  a  number  of  times,  and  regarding 
which  our  statutes  are  very  nearly  silent,  to  wit,  the 
problem  of  stating  which  party  has  the  burden  of  proof 
under  the  various  legal  conditions  which  may  arise. 

By  the  same  method  we  may  also,  I  believe,  find  the 
means  of  defining  a  doctrine  which  has  hardly  been  more 
than  touched  upon  by  our  court  decisions,  to  wit: 
what  constitutes  an  abuse  of  right,  so  as  to  make  the 
party  exercising  it  liable.  Although  the  absolute  for- 
mulas of  the  Roman  law  have  come  down  to  us,  our 
modern  legal  conscience  rebels  more  and  more  against  the 
idea  that  the  exercise 'of  any  right  can  be  without  limits. 
This  tendency  shows  itself  in  a  doctrine  which  finds 


§11]  EQUILIBRIUM  OF  INTERESTS  39 

much  favor  to-day,  refusing  to  apply  the  traditional 
maxim  "Neminem  laedit  qui  suo  jure  utitur"  in  all 
cases  where  a  real  abuse  of  a  right  is  apparent.  This 
doctrine,  which  has  for  a  long  time  been  upheld  with 
regard  to  certain  abuses  growing  out  of  the  ownership 
of  land  and  supplements  in  a  measure  the  code  provisions 
relating  to  the  rights  of  adjoining  owners,  has  in  these 
latter  days  been  invoked  against  certain  manifestations 
of  individual  liberty  which  have  required  repression  by 
private  law  because  they  encroached  on  the  rights  of 
others.  It  may  readily  be  seen  that  the  great  difficulty 
with  this  theory,  which  taken  by  itself  is  not  likely  to  be 
much  disputed,  is  in  the  clear  definition  of  what  con- 
stitutes an  abuse  of  right,  exceeding  its  legitimate  exercise 
to  such  an  extent  that  it  gives  rise  to  a  legal  liability. 
May  we  take  as  the  distinguishing  characteristic  of  such 
an  abuse,  from  a  moral  and  psychological  point  of  view, 
the  intention  of  injuring  another  while  apparently 
exercising  a  right?  That  would  be  nothing  but  a  return 
to  the  much  decried  doctrine  of  "emulation"  [some  forms 
of  unfair  competition]  and  to  the  maxim  which  is  so 
hard  to  apply:  "Malitiis  non  est  indulgendum."  My 
personal  opinion  rather  leads  me  to  believe  that  the  true 
and  just  limitations  of  individual  rights  will  be  dis- 
covered only  by  an  examination  of  their  economic  and 
social  object,  and  a  comparison  of  the  importance  of  this 
object  with  that  of  the  interests  opposed  to  it.  However 
that  may  be,  it  suffices  here  to  observe  that  this  import- 
ant question  of  the  abuse  of  rights,  regarding  which  our 
statutes  are  almost  completely  silent,  can  be  solved 
in  a  judicious  manner  only  by  the  balancing  of  all  the 
ethical,  political,  social,  and  economic  considerations 
which  enter  into  the  conflict  of  the  interests  involved. 

§  12.     The  Same  Subject  Continued.     In  order  to  ex- 
press my  ideas  fully  on  this  subject,  I  should  say  I  am 


40  GENY:   FREEDOM  OF  DECISION      [CH.  I 

convinced  that  greater  and  more  certain  progress  will  be 
made  in  the  law  by  a  frank  method  of  investigation  which 
will  openly  recognize  the  gaps  in  the  written  law.  By 
this  method  we  may  then  attempt  to  supply  what  the 
statute  lacks  by  means  of  an  independent  scientific  proc- 
ess, whereby  all  the  surrounding  circumstances  will  be 
examined  and  an  equilibrium  of  all  the  interests  involved 
be  produced  if  possible.  This  will  take  the  place  of  the 
subterfuge  of  forced  constructions  of  the  text,  which  is 
to  be  condemned  not  merely  because  it  fails  to  under- 
stand the  true  nature  of  statute  law  and  the  proper  rules 
for  putting  it  into  effect,  but  which  must  needs  result 
in  a  falsifying  of  the  ideas  contained  in  the  text  and  lead 
to  unsatisfactory  conclusions. 

I  may  be  permitted  to  make  this  matter  still  clearer 
by  choosing  as  an  illustration  another  extension  of  the 
traditional  conception  of  civil  liability  for  injuries.      I 
have  in  mind  what   has  been   called   the  doctrine  of 
objective  liability,  which  has  arisen  in  modern  days  from 
a  laudable  desire  to  give  a  fair  compensation  for  certain 
accidents  the  cause  of  which  is  unknown,  or  for  which 
no  specific  negligent  act  can  be  established.13 

Josserand  has  reviewed  and  analyzed  in  his  "De  la 
Responsabilit6  du  fait  des  choses  inanimees"  14  the  vari- 
ous theories  on  this  subject  which  have  been  proposed 
prior  to  his  own,  with  remarkable  sureness  and  delicacy 
of  touch.  He  has  had  little  difficulty  in  proving  that 
these  theories  have  failed  to  bring  about  the  desired 
results,  although  they  have  all  done  violence  to  the  statu- 
tory texts  on  which  they  have  been  built;  this  has  been 
the  case  without  distinction,  whether  they  involved 

II  It  is  well  known  that  notwithstanding  the  statutes  of  April  9,  1898, 
and  June  30,  1899,  this  is  still  an  open  question  for  all  those  injuries  not 
coming  within  one  of  these  statutes. 

'«  1897;  pp.  11-52. 


§12]  EQUILIBRIUM  OF  INTERESTS  41 

an  extension  of  contractual  liability,  or  whether  they 
started  from  an  amplification  of  the  presumptions  con- 
cerning negligence  and  thereby  pushed  the  doctrine  of 
liability  for  tort's  to  an  extreme  point. 

However,  when  we  stop  to  consider  the  new  concep- 
tion of  objective  liability  on  statutory  grounds  from  the 
same  point  of  view,  such  as  has  been  advocated  by 
Saleilles  since  1894,  and  further  developed  by  the  same 
author  and  Josserand,  will  we  not  unavoidably  be  driven 
to  recognize  that  this  ingenious  theory  has  precisely  the 
same  fault  as  those  gone  before,  in  so  far  as  it  purports 
to  be  based  on  positive  statutory  provisions,  so  that  the 
principle  of  employers'  risk  may  be  discovered,  as  has 
been  said,  in  the  Civil  Code  itself?  Whether,  with 
Josserand,  we  base  it  almost  entirely  on  the  empty  and 
vague  formula  of  section  1384  line  1  [A  person  is  respon- 
sible .  .  .  for  the  injuries  caused  by  his  own  act],  or 
are  radical  and  bold  enough  to  go  with  Saleilles  to  the 
first  provision  of  the  chapter  and  substitute  for  the 
conception  of  fault  as  expressed  in  section  1382  [Every 
human  act  whatsoever  which  causes  injury  to  another 
makes  the  person  through  whose  act  the  injury  occurs 
liable  for  the  damages]  the  simple  relation  of  cause  and 
effect,  in  either  case  we  shall  find  it  difficult  to  deny  that 
we  exceed  the  meaning  actually  expressed  in  the  text,  or 
twist  the  words  of  the  legislator  out  of  their  natural 
meaning.  Yet  the  principle  so  derived  is  still  far  from 
what  the  law  should  be,  because  with  all  the  forced  con- 
struction of  the  text  the  provision  itself  cannot  be 
changed  and  the  best  rule  that  can  be  read  into  it  is  a 
liability  for  accidents  caused  by  some  piece  of  prop- 
erty belonging  to  the  employer,  while  for  all  those  orig- 
inating without  some  material  object  over  which  the 
employer  had  control  there  is  still  no  adequate  and  equi- 
table provision. 


42  GENY:   FREEDOM  OF  DECISION      [Cn.I 

I  am  far  from  wishing  to  oppose  the  just  and  reasonable 
idea  which  has  inspired  these  new  theories.  I  agree 
with  that  proposition  altogether,  I  merely  wish  to  point 
out  the  defects  and  shortcomings  of  certain  mental  pro- 
cesses by  which  it  is  attempted  to  establish  it.  Accord- 
ingly, I  maintain  that  this  legal  principle  could  be  more 
easily  defended  from  the  standpoint  of  safe  reasoning, 
and  would  be,  more  readily  adaptable  to  the  facts,  if 
we  were  to  admit  frankly  that  the  Civil  Code  in  section 
1382  and  the  next  following  sections  provides  only  for 
injuries  resulting  from  the  fault  of  another,  but  that 
these  provisions  do  not  deal  at  all  with  inherent  risks 
of  the  employment.  The  real  question  is  to  find  out 
how  the  damages  resulting  from  a  pure  accident  can  be 
divided  among  two  or  more  persons  who  are  all  affected 
under  the  circumstances  of  the  case ;  and  we  should  say 
that  in  the  absence  of  a  statutory  provision  it  is  the 
office  of  the  court  to  regulate  the  matter  as  appears  best 
to  promote  justice  and  social  utility. 

In  order  to  learn  what  will  best  promote  justice  and 
social  utility,  there  is  no  way  but  to  observe  carefully 
what  is  the  actually  prevailing  moral  sentiment  regarding 
such  relations  between  man  and  man,  and  to  inquire 
into  the  social  and  economic  conditions  so  as  to  estimate 
the  various  interests  involved  at  their  true  value  in 
accordance  with  the  state  of  our  civilization  as  it  exists 
at  the  time  of  rendering  judgment. 

Briefly  put,  we  always  come  back  to  an  attempt  to  estab- 
lish an  equilibrium  between  interests  that  are  contending 
with  each  other  or  seem  to  be  inconsistent.  This  result  will 
never  be  obtained  except  by  examining  thoroughly  the 
elements  of  every  system  of  positive  law,  which,  as  I  have 
shown  in  another  place,  are  not  logical  entities,  but  those 
ethical  and  economic  realities  which  alone  can  give  us  an 
insight  into  the  effective  forces  of  social  life. 


§12]  EQUILIBRIUM  OF  INTERESTS  43 

Moreover,  as  a  general  proposition  at  least,  the  rules 
so  derived  would  give  way  to  any  inconsistent  stipula- 
tion entered  into  by  the  autonomous  will  of  the  parties, 
because  it  must  be  held,  &  priori,  that  these  understand 
better  than  anybody  else,  even  the  Government,  what 
will  best  promote  the  interests  which  they  are  protecting 
for  the  benefit  of  all  concerned. 

§  13.  The  Principle  of  the  Superior  Interest  of  the 
Community.  In  whatever  way,  however,  we  allow  the 
principle  of  the  autonomy  of  individual  wills  to  assert 
itself,  whether  it  supplements  or  contradicts  a  rule 
established  by  authority,  under  no  circumstances  can 
it  be  held  to  be  without  limits.  Although  primarily  the 
exercise  of  individual  wills  may  create  a  legal  relation 
at  the  discretion  of  the  parties  interested,  sometimes 
higher  interests  will  intervene  to  set  more  or  less  narrow 
bounds  to  its  power  and  to  substitute  officially  a  relation 
imposed  by  authority  to  one  created  freely  and  spon- 
taneously. In  other  words,  the  satisfactory  equili- 
brium of  all  the  interests  involved  requires  in  such  cases 
a  compulsory  standard  which  can  brush  aside  the  diver- 
gent fancies  of  the  parties.  This  is  at  the  bottom  of 
what  is  commonly  called  the  principle  of  public  order. 
I  shall  have  to  agree  that  these  two  words  are  vague  and 
ill-chosen  to  express  the  meaning  to  be  conveyed  thereby. 
Similarly,  I  confess  that  all  attempts  at  defining  "public 
order"  in  this  sense,  that  is,  definitions  which  attempt 
to  discover  a  criterium  outside  of  every  concrete  institu- 
tion, by  which  one  may  discern  at  once  the  legal  rules 
concealed  in  the  provisions  of  private  agreements,  have 
failed  completely.  However,  to  conclude  from  this,  as 
seems  to  be  the  idea  of  M.  de  Vareilles-Sommieres,  that 
we  ought  not  to  recognize  a  class  of  laws  as  being  charged 
with  a  superior  social  interest,  but  rather  to  assert  that 
no  private  person  can  derogate  from  the  effectiveness 


44  GENY:   FREEDOM  OF  DECISION      [Cn.  I 

of  any  law,  would  in  my  opinion  be  a  vain  attempt  to 
find  a  way  out  of  the  dilemma  and  amount  to  nothing 
more  than  to  transpose  the  difficulty  to  another  place. 
For  it  would  seem  certain  that  among  the  rights  accorded 
to  individuals  by  our  system  of  law  there  are  but  a  few 
which  cannot  be  voluntarily  renounced.  It  would  not 
be  a  very  difficult  matter  to  determine  what  particular 
statutes  giving  such  rights  cannot  be  nullified  by  incon- 
sistent private  agreements,  or  rather,  what  are  the 
rights  given  by  statutes  which  one  may  not  voluntarily 
surrender. 

It  would  be  purposeless,  however,  to  change  the  cus- 
tomary way  of  stating  the  problem,  unless  the  solution 
could  thereby  be  made  easier.  The  only  things  worth 
adopting  among  the  criticisms  that  have  lately  been 
directed  against  the  traditional  conception  of  "public 
order"  in  its  relations  to  private  law  are  these:  first, 
that,  stating  the  matter  negatively,  there  is  no  question 
here,  no  matter  if  the  words  used  may  make  it  appear  so, 
of  a  set  of  interests  really  distinct  from  and  separated, 
so  to  speak,  by  a  watertight  compartment,  from  what 
are  properly  private  interests;  furthermore,  speaking 
affirmatively,  the  question  resolves  itself  into  finding  out 
which  rules,  among  those  constituting  the  body  of  our 
private  law,  are  those  which  on  account  of  their  nature 
and  purpose  cannot  be  set  aside  by  a  free  regulation  of 
the  interests  involved  through  acts  based  on  the  principle 
of  the  autonomy  of  the  will ;  or  what  rules  will  at  least 
restrain  the  exercise  of  the  will  of  the  parties  sufficiently  to 
prevent  the  sacrifice  of  superior  interests  by  the  will  of 
private  persons. 

When  it  is  put  in  this  form,  the  question  becomes  of 
considerable  importance.  It  has  reference  not  merely 
to  legal  rules  embodied  in  the  written  law,  but  just  as 
much  to  every  other  legal  rule  that  can  possibly  be 


§13]  SUPERIOR  SOCIAL  INTEREST  45 

affected  by  the  act  of  private  parties,  whether  such  rule 
arises  under  customary  law  or  is  the  result  of  the  free 
investigation  of  legal  science.  In  fact  the  question  enters 
into  every  law  of  sucl}  a  nature  that  it  may  sometimes  be 
subject  to  the  will  of  the  parties  and  sometimes  rises 
superior  thereto.  In  the  case  of  rules  that  may  properly 
be  made  statutory,  it  would  seem  to  be  the  proper  busi- 
ness of  the  legislator  to  indicate  in  his  statute  what  effect 
he  intends  to  give  to  it  with  regard  to  inconsistent  private 
agreements.  It  will  have  to  be  said  that  few  statutes 
contain  any  such  clause,  but  that  in  most  cases  the  con- 
struction of  their  provisions  with  regard  to  this  point  has 
been  left  to  the  discretion  of  the  courts.  It  follows  that 
we  shall  here  find  a  vast  field  open  to  the  independent 
investigations  of  legal  scholars  not  only  in  connection 
with  customary  rules  and  principles  based  on  scientific 
research,  but  even  directly  in  connection  with  statutory 
provisions. 

Such  necessary  investigations  clearly  cannot  be  carried 
on  profitably  except  by  questioning  our  moral  nature, 
inquiring  into  the  principles  of  the  political  organization 
under  which  we  live,  and  studying  the  requirements 
of  our  economic  environment  so  that  we  may  learn  there- 
by those  superior  rules  which  form,  as  one  might  say,  the 
conditions  under  which  modern  society  lives  and  which 
in  consequence  must  necessarily  be  held  superior  to  any 
mere  private  acts  of  will. 

§  14.  Other  Applications  of  the  Method  of  Free  De- 
cision. Thus  the  courts  are  led,  without  exceeding  the 
well-known  limits  of  private  law,  whenever  they  have 
no  formal  guidance  furnished  by  statute  or  established 
custom,  to  search  for  light  among  the  social  elements  of 
every  kind  that  are  the  living  force  behind  the  facts  they 
deal  with,  if  they  wish  to  proceed  with  any  assurance  of 
being  right. 


46  GENY:   FREEDOM  OF  DECISION      [Cn.I 

The  same  thing  would  be  even  more  evident  if  we 
were  to  study  certain  other  problems  that  cannot  be 
solved  along  the  traditional  lines  and  bring  into  play 
even  more  directly  certain  moral  and  economic  interests 
which  our  written  laws  do  but  very  little  to  balance 
against  each  other.  Such  problems  may  be  found  in 
connection  with  a  great  variety  of  subjects.  Thus  there 
are  the  rights  inherent  in  the  personality  of  the  individual 
man  and  the  consequences  flowing  therefrom,  among 
which  may  be  mentioned  the  rights  of  intellectual  prop- 
erty. Then  there  is  the  problem  of  a  special  legal 
treatment  of  commercial  rights  and  their  proper  distinc- 
tion from  ordinary  civil  transactions.  Again,  we  may 
mention  the  question  of  the  legitimacy  and  legal  effects 
of  understandings  having  for  their  purpose  the  regulation 
of  industrial  production ;  the  very  complex  questions  in 
mining  law,  growing  out  of  the  relations  between  the 
surface  and  the  underground  workings,  and  many  other 
similar  matters.  These  questions  cannot  all  be  solved, 
and  our  positive  law  regarding  these  subjects  be  settled, 
except  by  means  of  attentive  observation  of  social  facts 
and  a  reliance  upon  well-ascertained  scientific  data. 

Here  I  must  make  an  end  of  my  observations.  I  believe 
that  what  has  been  said  will  suffice  to  show  the  fecundity 
and  to  explain  the  working  of  this  necessary  part  of 
juridical  method,  which  I  have  called  "free  decision  on  a 
scientific  basis." 


§1]       EHRLICH:  FREEDOM  OF  DECISION         47 


CHAPTER  II 

JUDICIAL  FREEDOM  OF  DECISION:  ITS 
PRINCIPLES  AND  OBJECTS 

BY  EUGEN    EHRLICH1 

I.     BUREAUCRATIC  LAW  AS  CONTRASTED  WITH 

PEOPLE'S  LAW 

§  1.  RELATIONS  OF  LEGISLATOR  AND  JUDGE.— §2.  IN- 
CREASED IMPORTANCE  OF  STATUTORY  LAW.— §3.  RULES 
OF  DECISION  INSUFFICIENT  TO  REGULATE  ACTUAL 
LIFE.  — §4.  IMPORTANCE  OF  UNWRITTEN  LAW. — 
§  5.  LAWYERS'  LAW.  —  §  6.  DEVELOPMENT  OF  INTER- 
NATIONAL LAW.—  §  7.  GROWTH  OF  LAW  WITHOUT  LEGIS- 
LATION.—§8.  LEGISLATION  NOT  A  PRIMITIVE  FORM 
OF  LAW.— §9.  THE  COURTS  AND  THE  STATUTES.— 
§10.  MODERN  CODES. —  §11.  INADEQUACY  OF  MERE 
STATUTORY  LAW. 

II.    STATUTORY  LAW  AND  ITS  OBSTRUCTION  TO  FREE 

JUDICIAL  DECISION 

§  12.  ADVANTAGES  AND  DISADVANTAGES  OF  CODIFI- 
CATION. —  §  13.  LEGAL  TECHNICALISM.— §14.  FURTHER 
OBJECTIONS  TO  THE  TECHNICAL  METHOD.  —  §  15.  TEN- 
DENCIES OPPOSED  TO  TECHNICALISM.  — §16.  APPROXI- 
MATION TO  FREE  DECISION. 

1  [Professor  of  Roman  Law  at  the  University  of  Czernowitz.  This  is 
a  translation  (omitting  the  first  six  pages)  of  his  "Freie  Rechtsfindung 
und  freie  Rechtswissenschaft,"  Leipzig,  1903.  Another  important  work 
of  the  author  in  this  field  is  "Grundlegung  der  Soziologie  des  Rechts," 
Munich,  1913.  The  translation  is  by  Ernest  Bruncken.] 


48      EHRLICH:   FREEDOM  OF  DECISION  [Cn.il 

III.  CHARACTERISTICS  OF  THE  PRINCIPLE  OF  FREE 

JUDICIAL  DECISION 

§  17.  FREE  DECISION  NOT  ARBITRARY.  —  §  18.  THE 
BASIS  OF  FREE  DECISION.  —  §  19.  LEGAL  GROWTH  AS 
AFFECTED  BY  THE  LAWYERS.  —  §  20.  THE  PERSONALITY 
OF  THE  JUDGE. 

IV.  THE  TASKS   AWAITING  FREEDOM  OF  JUDICIAL 

DECISION 

§21.  THE  WORK  OF  LEGAL  SCIENCE.  —  §  22.  THE 
PRACTICAL  OPERATION  OF  THE  LAW.—  §  23.  LEGAL  REGU- 
LATION AND  ACTUAL  LIFE.  — §24.  LEGAL  SCIENCE 
AND  THE  COURTS.  —  §  25.  THE  LAW  OF  EVIDENCE.  — 
§  26.  CONCLUSION. 

I.     BUREAUCRATIC  LAW  AS  CONTRASTED  WITH 

PEOPLE'S  LAW 

§  1.  Relations  of  Legislator  and  Judge.  Modern 
systematic  legal  science  inclines  to  explain  each  rule  of 
law  principally  by  seeking  to  discover  the  intention  of  the 
legislator;  but  sufficient  stress  has  never  been  laid  on 
the  fact  that  the  significance  of  law  in  the  daily  life  of 
a  people  depends  far  more  on  the  persons  charged  with 
its  administration  than  on  the  principles  according  to 
which  it  is  administered.  The  same  rule  is  likely  to 
have  an  essentially  different  meaning  in  different  coun- 
tries or  at  different  periods,  for  no  other  reason  than  that 
the  persons  sitting  on  the  bench  are  differently  trained, 
have  a  different  temperament,  hold  a  different  official 
or  social  position.  This  is  apt  to  be  more  vividly  realized 
by  the  trained  historian  of  law  than  by  the  analytical 
student.  To  the  historian,  the  "praetor"  and  the 
"prudentes"  still  speak  in  the  Pandects,  the  "Schoffen" 
in  the  old  German  law,  and  the  judges  of  the  Superior 
Courts  with  the  Chancellor,  in  English  common  law  and 


§1]  BUREAUCRATIC  LAW  49 

equity  grown  out  of  the  same  Germanic  root.  Similarly, 
the  law  prevailing  to-day  on  the  European  continent 
must  be  viewed  as  a  system  of  law  peculiar  to  a  judiciary 
composed  of  learned  bureaucratic  judges.  For  while 
we  may  properly  characterize  the  modern  State  as  a 
State  based  on  law,  yet  we  must  not  forget  that  on  our 
lips  that  term  means,  in  essence,  a  bureaucratic  State, 
although  doubtless  it  is  possible  for  a  State  to  exist 
which  is  based  on  law  and  is  not  bureaucratic,  as  con- 
versely one  may  conceive  of  a  bureaucratic  State  that 
is  not  based  on  law. 

We  are  all  children  of  the  bureaucratic  State  which 
has  now  dominated  our  political  and  social  life  for 
several  centuries.  Hardly  one  of  us  is  likely,  without 
great  difficulty,  to  free  himself  from  the  conceptions 
and  lines  of  thought  generated  and  fostered  thereby. 
In  the  eyes  of  a  bureaucracy  law  is  properly  nothing 
but  a  body  of  directions  given  by  the  Government  to 
its  officials.  To  be  sure,  in  its  effects  the  law  must  apply 
also  beyond  the  army  of  officials;  for  the  very  purpose 
of  law  is  to  regulate  the  conduct  of  the  whole  people 
that  is  subject  to  the  government.  At  this  truth,  how- 
ever, we  are  apt  to  arrive  only  in  a  roundabout  manner ; 
we  reason  that  the  people  submit  to  the  law  because 
the  Government  officials  compel  them  to  do  so,  or  would 
compel  them  if  they  dared  to  disobey. 

§  2.  Increased  Importance  of  Statutory  Law.  From 
the  fact  that  modern  judges  are  Government  officials 
charged  with  the  administration  of  the  law,  and  from 
the  conception  of  law  as  a  command  given  by  the  Govern- 
ment to  the  judge,  arises  the  supereminent  importance 
now  attributed  to  the  written  law  among  legal  sources. 
For  in  a  statute  it  is  apparent,  in  a  far  more  direct 
manner  than  in  any  other  form  of  law,  that  the  Govern- 
ment addresses  a  command  to  its  officials.  Whoever 


50      EHRLICH:   FREEDOM  OF  DECISION  [CH.II 

inclines  to  conceive  of  law  as  a  governmental  command 
will  find  himself  compelled  to  consider  every  rule  of  law 
more  or  less  as  if  it  were  a  statute. 

As  a  matter  of  fact  the  prevailing  theory  regarding 
the  sources  of  law  does  take  that  ground.  It  is  true 
that  the  introductory  sections  of  textbooks  will  assure 
us  that  customary  law  is  of  equal  force  with  written 
law.  Yet,  if  one  looks  at  the  actual  practice  rather 
than  the  verbal  expression,  one  will  soon  come  to  the 
conclusion  that  treatises,  manuals,  essays,  and  decisions 
proceed  from  an  assumption  —  never,  of  course,  openly 
confessed  —  that  there  is  really  no  law  except  statutory 
law.  Those  who  have  not  grown  up  in  a  bureaucratic 
State,  but  have  seen  living  customary  law  in  actual 
practice,  will  find  it  difficult  to  understand  the  tra- 
ditional lore  about  customary  law,  such  as  the  doctrines 
of  its  "origin,"  its  "presuppositions,"  the  question 
whether  a  statute  may  prohibit  the  derivation  of  a  rule 
from  custom  (although  that  is  all  the  time  supposed 
to  be  of  the  same  binding  force  as  the  written  law), 
or  whether  it  may  restrain  such  derivation  by  burden- 
some conditions.  When  these  doctrines  regarding  the 
application  of  customary  law  were  formulated,  almost 
in  the  form  in  which  they  are  taught  now,  by  the  jurists 
of  the  17th  and  18th  centuries,  the  intention  was  merely 
to  give  to  the  bureaucratic  judges  a  standard  by  which 
to  determine  the  validity  of  customs  derived  from 
Germanic  law,  which  were  always  looked  at  invidiously 
and  which  had  to  be  pleaded  and  proven  by  the  party. 
To-day  such  doctrines  are  obviously  no  longer  in  accord- 
ance with  the  times,  and  no  doubt  scientific  reexamina- 
tion  will  put  an  end  to  them. 

The  essential  nature  of  the  bureaucratic  State  is 
expressed  by  the  fact  that  for  us  the  statute  is  the  pre- 
dominant form  of  law.  Similarly,  the  content  of  the 


§2]   IMPORTANCE  OF  STATUTORY  LAW   51 

law  of  the  bureaucratic  State  depends  on  the  essential 
character  of  that  form  of  government.  In  essence, 
such  a  system  of  law  is  simply  a  rule  of  decision.  Its 
exclusive  or  almost  exclusive  purpose  is  to  direct  officials 
how  to  deal  with  the  matters  intrusted  to  them,  and 
particularly  how  to  decide  legal  controversies.  That  is, 
of  course,  a  very  one-sided  conception ;  for  law  as  a  rule 
of  decision  may  indeed  be  the  side  of  law  most  interest- 
ing to  the  lawyer,  but  it  is  by  no  means  the  only  and  not 
even  the  most  important  side.  Law  exists  for  other 
very  different  purposes  in  addition  to  the  settlement 
of  controversies.  It  is  the  very  foundation  of  the  social 
organism,  or  (to  use  an  expression  of  Schaffle,  already 
growing  antiquated),  law  is  the  skeleton  of  the  social 
body. 

It  is  true  that  social  arrangements  do,  in  most  cases, 
furnish  the  rules  by  which  disputes  growing  out  of  such 
arrangement  have  to  be  decided;  that,  however,  is 
manifestly  but  a  subordinate,  secondary  function.  The 
by-laws  of  an  association  may,  under  some  circum- 
stances, provide  a  useful  basis  for  the  settlement  of  a 
legal  controversy;  yet  those  by-laws  serve,  first  of  all, 
to  regulate  the  work  of  the  association.  When  the 
Austrian  Civil  Code  provides  that  the  husband  shall 
be  the  head  of  the  family,  it  defines  correctly  the  organi- 
zation of  the  family  as  it  exists  to-day;  but  it  does  not 
thereby  furnish  a  rule  of  decision  for  controversies,  and 
perhaps  does  not  intend  to  give  any.  We  all  know  that 
in  Rome  an  "obligatio"  could  arise  out  of  an  agreement 
to  do  all  sorts  of  things;  yet,  as  long  as  the  classical 
form  of  procedure  continued,  the  judgment  was  always 
for  the  payment  of  a  sum  of  money.  The  rule  of  deci- 
sion did  not  correspond  with  the  legal  nature  of  the 
relation  —  "aliud  erat  in  obligatione,  aliud  in  solutione." 
Eck,  in  a  well-known  essay,  explains  how  in  Rome  a 


52       EHRLICH:   FREEDOM  OF  DECISION  [Cn.II 

sale  was  a  contract  of  transfer  of  title,  exactly  as  to-day, 
although  the  rule  of  decision  in  the  Roman  law  provided 
a  liability  merely  on  the  ground  of  a  license  to  take 
possession.  The  clearest  case  of  a  difference  between 
a  rule  of  decision  and  a  rule  of  action  is  that  of 
"obligatio  naturalis"2  —  a  duty  actually  arises  out  of  it, 
yet  its  existence  cannot  be  made  the  basis  of  a  judgment 
for  the  payment  of  money. 

§  3.  Rules  of  Decision  Insufficient  to  Regulate  Actual 
Life.  No  doubt  it  would  be  all  wrong  to  assume  (as 
the  old  school  of  Liberal  politicians  used  to  do)  that  law 
consists  merely  of  rules  of  decision,  and  that  the  State 
has  no  business  to  organize  society  directly  by  means  of 
law.  Many  modern  agrarian  institutions  have  arisen 
directly  out  of  State  activities;  modern  social  legislation 
has  already  created  enormous  organizations;  and  above 
all,  the  State  organizes  itself  by  means  of  its  military, 
governmental,  and  administrative  institutions.  Not- 
withstanding all  that,  the  bulk  of  the  law  enacted  by 
the  State  undoubtedly  consists  of  rules  of  decision. 
Broadly  speaking,  the  State  can  do  nothing  but  issue 
commands  to  its  officials,  while  the  officials  can  do 
nothing  but  interfere  when  they  are  appealed  to,  and, 
as  a  rule,  that  is  true  even  where  they  ought  to  act  "ex 
officio."  However,  the  attempt  to  change  social  life 
by  means  of  rules  of  decision  rarely  accomplishes  its 
purpose  perfectly;  generally  speaking  such  means  are 
inadequate  to  the  ends.  People  go  on  just  as  before, 
even  if  once  in  a  while  a  lawsuit  is  decided  differently 
from  what  would  have  been  the  case  under  the  former 
rule.  If  at  the  present  moment  a  statute  were  to  be 
passed  giving  the  decisive  authority  in  all  family  matters 

2  [An  "obligatio  naturalis,"  in  the  Roman  law,  is  a  liability  void  so 
far  as  the  possibility  of  enforcing  it  goes,  while  it  is  still  executory;  yet, 
if  it  has  been  executed,  it  may  become  the  basis  of  further  legal  con- 
sequences. —  TRANSL.] 


§3]  LAW  AND  ACTUAL  LIFE  53 

to  the  mother  rather  than  to  the  father,  the  new  law 
would  probably  have  an  effect  only  in  the  comparatively 
rare  cases  of  judicial  decisions  relating  to  family  affairs. 
The  social  organization  of  the  family  would  probably 
not  be  at  all  changed  thereby.  Anybody  who  should 
assert  that  the  broad  foundations  of  social  life,  such  as 
property,  contract,  family,  succession,  were  established 
by  such  petty  instrumentalities,  or  that  their  develop- 
ment was  materially  dependent  on  them,  would  be  con- 
tending against  the  plainest  evidence. 

§4.  The  Importance  of  Unwritten  Law.  But,  even  of 
rules  of  decision,  the  smallest  part  is  the  result  of  State 
action.  Every  sort  of  protection  of  rights  by  the  State 
begins  with  enforcing  the  payment  of  compensatory 
damages,  which  in  primitive  times  the  injured  party 
sought  to  recover  on  his  own  authority  and  by  his  own 
power.  At  the  moment  when  the  judgment  of  a  court 
is  substituted  for  this  primitive  self-help,  there  are  no 
rules  of  decision  in  existence  except  those  flowing  from 
the  very  nature  of  the  social  organization.  In  other 
words,  they  are  derived  from  such  sources  as  the  nature 
of  property  in  the  form  it  assumed  directly  under  the 
conditions  of  primitive  ownership ;  also  from  the  nature 
of  those  associations  which  are  of  so  much  importance 
in  primitive  society,  like  the  clan,  the  family,  the  com- 
munity, the  guild ;  from  the  customary  subject-matters 
and  forms  of  the  most  ancient  contracts,  and  the  primi- 
tive forms  of  intercourse,  which  are  mostly  older  than 
any  sort  of  legal  protection.  Decisions  are  first  preserved 
by  oral  tradition,  then  written  down,  collected,  com- 
mented upon,  generalized,  and  at  last  codified.  Thus 
arise  those  peculiar  systems  of  law  in  the  special  keeping 
of  lawyers,  which  are,  in  many  different  forms,  charac- 
teristic of  the  early  times  of  all  the  nations  of  the  world. 
They  are  legal  science  and  legal  rule  all  in  one,  like  the 


54      EHRLICH:   FREEDOM  OF  DECISION  [Cn.  II 

old  "jus  civile"  of  the  Romans  which  still  lives,  unchanged 
in  essentials,  in  the  writings  of  the  classical  Roman 
jurists  and  the  great  compilation  of  Justinian. 

The  decisions,  therefore,  are  not  based  on  the  rules  of 
law,  but  the  rules  of  law  are  deduced  from  the  decisions. 
The  law  on  which  the  decisions  are  based  is  the  "jus  quod 
est."  Paulus,  who  could  still  observe  the  actual  working 
of  a  living  law  of  this  kind,  puts  what  he  has  learned  in 
actual  experience  tersely  into  the  famous  maxim:  "Non 
ex  regult  jus  sumatur,  sed  ex  jure  quod  est  regula  fit." 
The  decisions  are  older  than  the  rules,  —  the  law  of  the 
lawyers  older  and  incomparably  richer  than  the  law  of 
legislatures. 

§  5.  Lawyers'  Law.  It  is  well  enough  to  call  such 
lawyers'  law  3  "customary  law,"  as  is  done  in  the  books; 
only,  one  should  not  forget  that  this  expression  covers 
several  very  different  things.  The  lawyers'  law  of  com- 
merce is  almost  entirely  the  custom  of  merchants.  The 
lawyers'  law  of  damages  and  procedure  arises  from  the 
gradual  mitigation  of  arbitrary  self-help,  especially 
after  the  custom  of  calling  on  the  judge  to  settle  quarrels 
has  become  obligatory.  The  lawyers'  law  of  primitive 
associations,  both  local  ones  like  the  commune,  and  social 
ones  like  clan  and  family,  is  based  on  primitive  social 
inclinations  of  mankind;  with  these,  all  such  associa- 
tions appear,  and  when  they  decay  the  associations  also 
fall  into  irremediable  decline.  From  such  tendencies 
also  the  law  of  succession  takes  its  origin  almost  entirely. 
In  the  lawyers'  law  growing  out  of  the  distribution  of 
property  can  be  found  the  rigid  expression  of  social 
relations  of  power;  for  upon  these  depends  the  regula- 
tion of  such  matters  as  the  services  to  be  rendered  by  the 

3  [The  word  "Juristenrecht,"  used  in  the  original  text,  comprises  first 
of  all  those  Roman  law  rules  based  on  the  "auctoritas  prudentium"; 
next  also  any  law  developed  by  a  special  class  of  lawyers,  like  the  com- 
mon law  as  found  in  the  decisions  of  our  courts.  —  TRANSL.] 


§5]  LAWYERS'  LAW  55 

villein  to  the  lord  of  the  manor,  or  the  question  whether 
after  the  decease  of  the  feoffee  the  land  shall  return  to 
the  feoffor  or  go  to  the  heirs  of  the  feoffee's  body. 

It  is  clear  that  lawyers'  law  could  not,  indeed,  create 
social  institutions,  but  it  could  delimit  them  firmly 
and  give  them  a  theoretical  definition.  It  could  do  this 
especially  where,  as  among  the  Romans,  it  had  a  direct 
effect  upon  actual  life  by  means  of  the  practice  of  fol- 
lowing the  opinions  of  consulting  lawyers.  Nobody  is 
likely  to  imagine  that  the  lawyers  could  have  established, 
for  example,  a  legal  institution  like  usufruct  (or  life 
estate  in  land) ;  but  it  was  they  who  made  the  form  of 
usufruct  in  Rome  serviceable  for  that  purpose,  and  it 
was  also  their  business  to  find  a  rule  for  the  division  of 
profits  between  the  owner  and  the  beneficiary.  In  all 
such  cases  the  rules  of  decision  are  derived  from  the 
nature  of  the  social  institutions  and  processes  with 
which  the  lawyers  had  to  deal,  and  in  the  same  way  the 
practice  of  the  lawyers  adapts  itself  to  the  tendencies 
already  noticeable  in  business  and,  so  to  speak,  formulates 
the  wishes  of  business  men. 

§  6.  Development  of  International  Law.  We  may 
now  call  attention  to  a  similar  course  of  development 
which  perhaps  is  shaping  itself  before  our  very  eyes. 
It  is  not  entirely  improbable  that  in  the  course  of  time 
a  judicial  power  and  a  system  of  administering  law  may 
grow  up,  to  which  the  disputes  between  States  may  be 
subject  in  the  same  sense  in  which  to-day  contentions 
between  private  persons  are  subject  to  the  judicial 
power  of  the  States.  The  rules  of  law  according  to 
which  such  an  administration  of  justice  would  be  carried 
on  could  not  possibly,  at  first,  be  anything  but  a  law- 
yers' law  derived  from  the  nature  of  the  State  and  the 
existing  customs  of  international  legal  relations.  Zitel- 
mann,  in  his  "Private  International  Law,"  shows  what 


50      EHRLICH:   FREEDOM  OF  DECISION  [Cn.  II 

a  multitude  of  rules  that  might  also  serve  to  decide 
public  international  disputes  could  be  derived  simply 
from  the  principles  of  local  and  personal  jurisdiction. 
Surely  this  process,  which  is  easily  conceivable  by  a 
modern  lawyer,  represents  very  clearly  what  has  already 
occurred  once  before,  when  judicial  remedies  were  sub- 
stituted for  self-administered  justice.  These  judicial 
remedies  were  based  upon  a  system  of  lawyers'  law 
derived  from  the  nature  of  the  disputes  submitted  to 
the  courts  and  from  the  existing  customs  of  human 
intercourse.  If,  accordingly,  someone  were  to  assert 
that  the  various  States  owed  their  origin  or  continued 
existence  to  the  protection  they  received  from  this 
species  of  lawyers'  law  as  administered  in  the  inter- 
national courts,  he  would  be  about  as  near  to  the  truth 
as  those  who,  at  the  present  time,  assume  that  the  law 
of  property,  family,  contract,  or  succession  is  in  some 
manner  founded  on  the  protection  given  to  it  by  the 
State  by  means  of  the  rules  of  decision  established  by  it. 

§  7.  Growth  of  Law  without  Legislation.  For  the  same 
reason,  the  rules  of  decision  already  in  existence  are 
necessarily  in  a  continuous  state  of  change,  simply  on 
account  of  social  evolution.  This  can  be  observed  most 
clearly  in  the  case  of  the  adopted  Roman  law.  For 
what  was  adopted  was  not,  of  course,  the  legal  relations 
existing  among  the  Romans,  but  merely  the  Roman 
rules  of  decisions,  and,  among  these  (as  already  stated), 
almost  exclusively  those  belonging  to  the  body  of  law- 
yers' law.  Now  we  find  ourselves  confronted  by  this 
remarkable  situation,  that  the  Roman  rules  of  decision 
are  filled  with  an  entirely  new  content  by  the  modern, 
native  legal  relations  to  which  they  are  applied. 

Looking  at  it  superficially,  one  might  think  that  the 
Roman  law  of  debtor  and  creditor  was  adopted  almost 
completely.  Yet,  in  the  case  of  a  Roman  "obligatio," 


§7]  LAW  WITHOUT  LEGISLATION  57 

creditor  and  debtor  were  not  individuals  but  groups  of 
individuals,  legally  represented  by  the  "paterfamilias," 
who  alone  could  do  a  legal  act.4  Obviously,  the  fact 
that  to-day  this  relation  is  not  one  between  groups  of 
people  but  between  individuals  is  a  difference  so  funda- 
mental that  as  against  this  all  similarities  in  detail  must 
disappear.  Again,  almost  before  our  eyes,  the  matri- 
monial relation  is  turning  from  a  relation  of  dominion 
of  a  man  over  a  woman  into  an  association  of  two  indi- 
viduals of  equal  importance  and  equal  rights ;  the  paternal 
authority  and  the  authority  of  a  guardian  are  becoming 
a  public  office  instead  of  a  private,  profitable  right. 

Transformations  of  this  sort,  pregnant  with  immeasur- 
able consequences,  are  likely  to  be  at  work  every  moment 
in  affecting  legal  and  social  judgments  concerning  legal 
relations;  yet  it  might  not  be  necessary  on  that  account 
to  change  a  single  line  of  the  written  law.  Many  a 
thing  is  to-day  considered  a  bitter  wrong  done  to  a 
matrimonial  partner,  or  a  breach  of  faith  toward  a  ward, 
which  perhaps  as  late  as  the  first  half  of  the  18th  or  the 
first  third  of  the  19th  century  nobody  would  have  con- 
sidered wrong.  The  most  tremendous  and  irresistible 
legal  revolutions  are  going  on  in  the  social  institutions 
themselves  and  transform  radically  the  rules  of  decision 
of  the  lawyers'  law,  sometimes  without  so  much  as 
entering  into  the  consciousness  of  the  parties  or  even  of 
the  lawyers  themselves. 

§  8.  Legislation  Not  a  Primitive  Form  of  Law.  The 
formulated  law  proceeding  from  the  government  is 
essentially  different  from  the  lawyers'  law.  The  statutes, 

4  To  this  group  of  individuals  belonged  not  only  the  members  of  the 
family,  but  also  the  slaves  and,  in  the  more  ancient  time,  apparently 
also  the  freedmen,  even  although  these  were  capable  of  having  legal 
rights  and  doing  legal  acts.  Comp.  Cicero,  "Epistula  ad  Quintum,"  I, 
1,  13:  "libertis  quibus  illi  (maiores)  non  multo  secus  ac  servis  impera- 
bant." 


58      EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

as  a  type,  are  much  newer  than  customary  law  or 
lawyers'  law,  and  are  probably  everywhere  a  relatively 
late  phenomenon.  In  antiquity,  it  seems  to  have  become 
well  established  among  Romans  and  Athenians  only, 
although  in  the  other  Greek  States  there  existed  con- 
siderable beginnings  toward  it.  The  earlier  Middle  Ages 
likewise  proceeded  hardly  beyond  attempts  and  transi- 
tions. Administrative  ordinances  and  provisions  relating 
to  peace  and  war  or  public  works  are,  of  course,  not 
properly  counted  among  statutes,  even  when  they  are 
adopted  by  the  assembly  of  the  people.  The  "codes"  of 
Hammurabi,  Moses,  Manu,  Zarathustra,  of  the  legendary 
Minos  and  Lycurgus,  the  Roman  "leges  regiae"  and 
Twelve  Tables,  the  Germanic  "leges  barbarorum,"  the 
Koran, —  all  these  amount  merely  to  the  recording  and 
editing  of  existing  ceremonial,  ethical,  and  religious 
rules,  and  rules  of  customary  law.  Sometimes  they 
were  mere  private  records,  sometimes  they  were  made 
under  the  authority  of  priests  or  rulers;  sometimes, 
even,  they  were  edited  rather  freely  and  contain  exten- 
sive changes ;  and  at  a  later  period  ordinances  were  added 
abrogating  or  amending  objectionable  or  obsolete  legal 
customs.  These  begin  to  approximate  closely  to  statutes. 
But  a  statute  proper  as  regards  subject-matter,  that  is, 
an  abstract  rule,  directing  the  people  how  to  act  in  the 
future,  presupposes  a  decidedly  advanced  conception 
of  the  functions  of  the  State,  as  well  as  governmental 
agents  ready  and  capable  of  enforcing  such  a  rule,  and 
some  comprehension  of  the  purpose  of  the  law  among 
the  broad  masses  of  the  people.  An  oriental  despot 
may  be  able  by  a  nod  to  raze  a  city,  but  he  cannot  pre- 
scribe to  his  subjects  the  form  of  the  contracts  they 
make  among  themselves. 

§  9.     The  Courts  and  the  Statutes,      Evidently    the 
relation  of  the  judge  toward  the  statutory  law  is  quite 


§9]  COURTS  AND  STATUTE  LAW  59 

different  from  his  relation  toward  the  lawyers'  law. 
The  statute  gives  him  commands,  the  lawyers'  law 
offers  instruction.  Lawyers'  law  derives  its  force  from 
its  foundation  in  a  just  judgment  regarding  existing 
relations,  while  the  statute  derives  it  from  the  power 
of  the  government.  Courts  receive  commands  from 
the  legislative  power  having  authority  over  them,  but 
acquire  information  wherever  they  find  it.  English 
courts  cite  unhesitatingly  American  decisions,  American 
courts  cite  English  ones  —  but  to  base  a  judgment  on 
a  foreign  statute  would  be  utterly  out  of  the  question.5 
In  the  same  manner  the  Roman  lawyers'  law  has  been 
utilized  wherever  it  was  taken  simply  as  "written 
reason,"  as  in  Scotland,  to  some  extent  in  the  Low 
Countries  and  in  France,  and  even  in  Germany  until 
the  rise  of  the  learned  judiciary. 

But  modern  bureaucratic  judges,  as  was  shown  above, 
have  lost,  in  consequence  of  their  official  position 
and  their  whole  legal  training,  all  pyschological  capacity 
to  find  in  a  legal  rule  anything  but  a  command.  Thus 
the  development  of  a  learned  governmental  judiciary 
brought  about  a  tendency  to  treat  lawyers'  law  as  if  it  were 
of  the  same  nature  as  statutory  law.  In  this  manner 
what  originally  was  merely  instruction  was  raised  to 
the  rank  of  a  command. 

§  10.  Modern  Codes.  The  turning  of  lawyers'  law 
into  written  law  found  its  consummation  in  the  modern 
civil  codes.  Like  the  Corpus  Juris,  these  are  for  the 
most  part  codifications  of  the  lawyers'  law,  but  statutory 
provisions  proper  are  also  to  be  found  in  them.  Exter- 
nally, the  lawyers'  law  is  here  entirely  assimilated  to 
the  written  law;  and  this  fact  has  already  entered  so 

B  Where  foreign  statutes  are  cited  as  authorities,  as  is  done  frequently 
for  instance,  by  Swiss  courts  with  regard  to  German  statutes,  the 
foreign  law  is  treated  not  as  a  statute  but  as  "written  reason,"  just  as 
the  opinions  of  an  author  might  be  cited. 


60      EHRLICH:   FREEDOM  OF  DECISION  [Cn.  II 

deeply  into  the  legal  consciousness  of  the  people  and 
the  modes  of  thinking  of  the  lawyers,  that  even  those 
will  have  to  reckon  with  it  who  do  not  overlook  the 
internal  differences  on  account  of  the  external  assimi- 
lation. 

After  all,  lawyers'  law  remains  lawyers'  law  even  when 
it  is  put  into  sections  and  adopted  by  a  representative 
assembly;  the  distinctive  character  of  this  source  of 
law  will  continue  to  produce  its  effects  below  the  surface. 
Yet  it  is  apparent  on  all  sides  that  this  intrinsic  difference 
finds  no  sort  of  outward  recognition.  Even  the  fictions 
and  constructive  assumptions  of  the  civil  law  are  in 
force  as  if  they  were  in  the  nature  of  real  statutes.  It 
is  assuredly  very  doubtful  whether  there  ever  have 
been,  in  Germany,  servitudes  in  the  Roman  sense;  yet 
the  whole  civil  law  relating  to  servitudes,  taken  as  it 
was  from  Roman  conditions,  had  as  a  matter  of  course 
to  be  applied  to  those  legal  relations  which  in  the  German 
civil  law  were  treated  as  analogous  to  Roman  servi- 
tudes, even  to  such  an  extent  that  one  had  to  sue  by  a 
form  of  action  like  the  Roman  "actio  confessoria." 

§11.  Inadequacy  of  Mere  Statutory  Law.  This  process, 
resulting  finally  in  the  practical  elimination  of  customary 
law  and  the  turning  of  lawyers'  law  into  statutes,  has 
given  to  the  external  form  of  modern  law  a  rigid  immo- 
bility which  apparently  renders  impossible  all  devel- 
opment except  by  means  of  legislation.  That  form 
corresponds  very  well  to  the  spirit  of  the  prevailing 
scientific  doctrine,  and  sometimes  it  is  actually  advocated 
in  so  many  words  as  the  true  principle.  Yet,  not- 
withstanding all  this,  that  formal  rigidity  has  always 
been  much  more  apparent  than  real.  The  reason  for 
this  is  by  no  means  lack  of  intention  to  make  it  real, 
but  rather  the  existence  of  certain  truths  which,  like  all 
truths,  cannot  be  kept  from  asserting  themselves 


§11]  DEFECTS  OF  STATUTE  LAW  61 

No  theory  of  the  application  of  law  can  get  around 
the  difficulty  that  every  body  of  formulated  rules  is  in 
its  very  nature  incomplete;  that  it  is  really  antiquated 
the  very  moment  it  has  been  formulated.  Consequently, 
it  can  hardly  govern  the  present  and  never  the  future. 
No  such  theory  will  ever  be  able  to  prevent  the  perpetual 
course  of  evolution  of  the  social  institutions  to  which 
the  law  is  applied,  whereby  the  formulated  rules  of 
decision  are  constantly  obliged  to  deal  with  new  subject- 
matters.  And  it  will  also  never  be  possible  to  avoid 
the  fact  that  the  individuals  intrusted  with  the  applica- 
tion of  the  law,  being  children  of  their  nation  and  their 
age,  will  apply  the  law  in  the  spirit  of  their  nation  and 
their  age,  and  not  in  the  spirit  of  past  centuries,  accord- 
ing to  the  "intention  of  the  legislator."  The  most  solid 
theories  and  the  most  powerful  legislation  must  alike 
be  shattered  upon  the  rock  of  such  realities. 

II.  STATUTORY  LAW  AND  ITS  OBSTRUCTIONS  TO  FREE 
JUDICIAL  DECISION 

§  12.  Advantages  and  Disadvantages  of  Codification. 
The  codification  of  the  law  actually  in  force  becomes 
a  necessity  after  the  body  of  lawyers'  law  has  increased 
beyond  a  certain  point.  Notwithstanding  some  unde- 
niable drawbacks,  such  codification  seems  to  be  advan- 
tageous on  the  whole.  By  summing  up  the  entire  course 
of  legal  development  to  date,  it  creates  some  sort  of 
order  out  of  the  chaos  of  the  law,  —  which  in  the  course 
of  time  tends  to  become  an  impenetrable  wilderness  even 
to  the  most  skillful. 

It  is  true  that  the  international  interaction  of  legal 
scientific  labor  is  thereby  rendered  impossible,  —  such 
an  influence  as  existed  doubtless  during  the  flowering 
period  of  the  common  law,  when  Germany,  Holland, 
France,  and  Italy  formed  a  single  province  from  a 


62       EHRLICH:   FREEDOM  OF  DECISION  [Cn.  II 

literary  as  well  as  a  legal  point  of  view.  For  even  so 
late  a  treatise  as  that  of  Savigny,  in  the  early  1800s, 
was  founded  on  the  idea  of  a  science  of  the  civil  law 
unhampered  by  national  boundaries.  Nevertheless, 
codification  creates  a  single,  firm  basis  for  legal  develop- 
ment and  legal  science  within  a  nation.  And  it  may 
be  hoped  that  in  the  course  of  time  this  may  break 
through  its  national  limitations  and  become  trans- 
formed into  a  general,  comparative  science  of  law,  at 
least  in  the  sense  in  which  the  work  of  the  analytical 
school  of  Austin  and  Holland  constitutes  such  a  general 
science  of  law. 

Even  in  regard  to  the  common  law,  however,  it  would 
have  been  worth  doubting  whether  it  was  necessary  or 
proper  to  go  to  the  Corpus  Juris  for  rules  relating  to 
legal  institutions  or  legal  problems  about  which  the 
common  law  is  silent  (especially  those  originating  sub- 
sequent to  the  Reception),  and  for  that  purpose  to 
dabble  in  fictions  and  logical  generalizations  modeled 
after  those  of  the  common  law,  while  rejecting  the  right 
of  free  judicial  decision  on  principle.  Now  after  the 
common  law  has  everywhere  been  supplanted  by  codes, 
that  question  assumes  a  double  importance.  Are  we 
to  renounce  all  free  judicial  decision  regarding  these 
also?  Is  it  to  be  our  destiny  for  all  future  time  to  try 
to  regulate  life  by  fictions  and  logical  generalizations? 

Government-formulated  law  signifies  invariably  a 
demand  made  by  the  State  upon  Society.  It  means 
that  social  development  is  to  be  subjected  to  the  ends 
of  the  State.  Therefore  it  is  necessary,  in  order  to 
justify  the  compulsion  which  the  statute  exerts  upon 
social  evolution,  to  show  that  such  compulsion  is  abso- 
lutely unavoidable  for  the  higher  purposes  of  the  State. 
Consequently,  it  is  a  fair  question  to  ask  whether  the 
codification  of  the  law  may  not  be  objectionable  on  this 


§12]  CODIFICATION  63 

ground  alone,  viz.,  that  it  enforces  on  human  life  the 
will  of  the  State  in  a  thousand  instances,  although  fre- 
quently the  State  is  not  interested  in  the  least  that  such 
should  be  the  case.  What  we  are  here  concerned  about, 
however,  is  not  merely  restraint  by  statute,  but  restraint 
by  a  technical  judicial  method,  which  applies  the  statute 
to  cases  for  which  it  contains  no  express  directions. 

§  13.  Legal  Technicalism.  It  is  certain  that  one  need 
not  expect  better  or  juster  results  from  such  technical 
decisions  than  from  free  ones.  Generally  speaking,  it 
is  undoubtedly  much  easiej  to  decide  a  definite  case  cor- 
rectly than  to  establish  an  abstract  rule  universally 
applicable  for  all  imaginable  cases;  and  surely  it  can 
hardly  be  maintained  seriously  that  such  a  rule  will 
invariably  result  in  the  fairest  decision,  even  in  those 
cases  which  nobody  had  thought  of  when  the  rule  was 
made.  As  a  matter  of  fact  no  such  thing  is  attempted 
by  the  technical  judicial  method  of  decision;  its  goal 
is  quite  different.  A  rule  is  to  be  framed,  not  neces- 
sarily always  just,  but  at  least  certain,  that  can  be 
ascertained  in  advance  and  will  afford  protection  against 
arbitrary  and  biased  judgments.  In  order  to  attain 
this  end,  the  judge  is  to  be  subjected,  bound  hand  and 
foot,  to  a  rule  that  determines  all  things  in  advance. 

If  an  inference  may  be  drawn  from  the  experience  of 
four  centuries  during  which  this  legal  technicalism  held 
undisputed  sway,  it  would  seem  that  this  goal  has  never 
been  reached,  and  that  it  can  never  be  attained.  In 
the  countries  where  the  technical  method  prevails,  the 
decisions  are  no  more  certain,  even  by  a  hair's  breadth, 
and  the  courts  not  a  whit  less  arbitrary,  than  under  the 
"jus  civile"  of  the  Romans  or  under  the  common  law 
of  Englishmen  and  Americans.  Even  the  most  ordin- 
ary interpretation  of  a  statute,  consisting  in  the  discovery 
of  the  legislative  intent,  gives  rise  to  so  many  doubts 


64      EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

that  a  man  who  wanted  to  misapply  the  law  would  have 
to  be  peculiarly  inept  in  order  to  find  the  paper  fence 
of  the  statute  an  obstacle.  Really,  no  possible  harm 
could  be  done  if  we  renounced  once  for  all  our  attempts 
at  making  the  law  certain  and  guaranteeing  its  unbiased 
administration  by  means  of  fictions  and  rules  of  con- 
struction. 

If  the  prevailing  doctrine  were  really  meant  seriously, 
it  would  be  necessary  to  overrule  every  motion  of  a 
party,  whether  the  motion  of  plaintiff  for  leave  to  bring 
suit,  or  the  motion  of  a  defendant  for  leave  to  interpose 
a  demurrer,  a  motion  in  the  course  of  an  action  or  a 
motion  in  an  "ex  parte"  proceeding,  unless  an  express 
provision  could  be  shown  in  the  statute  directing  the 
court  to  grant  the  motion.  Such  is  said  to  have  been 
the  rule  in  Rome,  according  to  the  account  given  by 
Gaius  (though  quite  unreliable),  in  the  days  when  "legis 
actiones"  were  in  vogue.  Then  every  action  had  to 
abate  that  was  not  founded  on  a  specific  "lex."  Not 
one  of  the  modern  codes  takes  this  position.  All  of 
them  admit  at  least  analogies  and  rules  of  construction. 
According  to  these,  it  suffices  if  by  the  statute  a 
similar  motion  would  have  to  be  granted,  or  even  if 
the  claim  could  be  made  to  appear  by  construction  to 
be  in  harmony  with  the  law  as  declared.  The  prevail- 
ing doctrine  justifies  the  application  of  a  statute  in 
cases  which  the  legislator  obviously  never  had  in  mind, 
by  saying  that  the  legislator,  if  he  had  thought  of  them, 
would  have  treated  them  as  he  treated  similar  cases,  or 
as  he  treated  those  cases  which  serve  as  starting  points 
for  the  work  of  logical  construction. 

Every  analogy,  however,  and  every  rule  of  construction 
implies  (to  use  the  expression  of  Gustav  Riimelin) 
a  "value  judgment";  the  implied  assertion  is  always 
that  by  means  of  the  analogy  or  the  rule  of  construction 


§13]  TECHNICALISM  65 

a  fair  result  may  be  obtained.  No  doubt  that  is  correct, 
for  otherwise  one  could  hardly  maintain  that  the  legis- 
lator would  have  decided  in  the  same  way  if  he  had 
thought  of  such  cases.  But  if  that  is  really  the  case, 
then  the  technical  method  of  decision  also  leaves  so 
much  to  the  discretion  of  the  judge  that  it  affords  prac- 
tically no  advantage  at  all  over  freedom  of  decision. 

§  14.  Further  Objections  to  the  Technical  Method.  But 
how  about  the  possibility  of  foreseeing  what  the  decision 
of  the  court  will  be?  In  what  cases  is  such  foresight 
actually  attained  under  the  technical  method?  Appar- 
ently in  those  few  cases  only  in  which  the  law  is  so  clear 
and  definite  that  there  is  really  no  need  of  searching  for 
it.  In  cases  of  this  sort,  however,  the  method  of  free 
decision  would  make  no  change,  for  it  would  come  into 
play  merely  when  there  is  no  clear  provision  in  the 
formulated  law.  There  is  good  reason  to  claim  that  a 
better  guaranty  for  certainty  of  the  law  than  by  the 
technical  method  may  be  found  in  a  method  of  free 
decision  --  bound  only  by  judicial  precedents,  but  not 
beyond  that.  Even  to-day,  a  judge  feels  greater  assur- 
ance when  he  can  refer  to  a  series  of  adjudications 
than  when  he  has  nothing  but  a  construction  of  the 
statute  which  may  at  any  time  be  upset  by  some  other 
artist  in  construction. 

On  still  another  ground,  however,  one  may  venture 
to  call  the  method  of  legal  technicalism  nothing  less 
than  the  sin  against  the  Holy  Spirit.  For  this  method 
has  obscured  our  eyes  to  the  only  true  principle  at  the 
foundation  not  merely  of  a  certain  and  unbiased  adminis- 
tration of  justice,  but  also  of  a  justice  dominated  by 
great  ideals :  There  is  no  guaranty  of  justice  except  the 
personality  of  the  judge.  By  making  legislation  the 
center  of  our  system  of  law,  and  by  nothing  else,  has  it 
been  possible  to  hide  for  so  long  a  period  the  recognition 


66      EHRLICH:  FREEDOM  OF  DECISION  [Cn.  II 

of  the  simple  truth  that  the  greatest  task  that  can  be 
given  a  man  to  discharge,  Justice,  requires  a  standard 
of  mental  and  moral  greatness  far  above  the  common 
average.  Thus,  and  thus  only,  can  people  fail  to  see 
that  for  such  a  task  a  man  is  not  fit  merely  because  by 
examination  and  a  little  practice  he  has  proved  that  he 
can,  after  a  fashion,  find  his  way  through  the  sections 
of  a  code. 

Even  mistakes  have  a  logic  of  their  own.  When  the 
code  sections  were  made  the  guardians,  so  to  speak,  of 
legal  certainty,  other  guardians  had  to  be  installed  to 
see  that  the  guardians  did  their  duty.  Thus  came 
about  the  system  of  appellate  courts,  one  above  the 
other,  and  the  baleful  practice  of  having  courts  of  plural 
judges,  in  which  the  several  judicial  individualities 
either  neutralize  each  other  or  vanish  in  mere  corporate 
responsibility.  Such  was  the  origin  of  the  modern 
impersonal  courts  of  the  European  continent,  which  are 
radically  different  from  those  of  the  Romans,  and  also 
from  those  of  the  English,  among  whom  the  first  men 
of  the  nation  count  it  the  greatest  of  honors  to  be  called 
upon  the  bench.6  Anybody  who  realizes  how  with  us 
an  unproductive  dialectical  smartness  is  considered  the 
highest  proof  of  legal  skill  can  hardly  understand  why 
the  Romans  had  such  a  high  regard  for  legal  learning, 
and  why  they  should  describe  it  as  "vera  philosophia" 
and  "divinarum  atque  humanarum  rerum  notitia." 

§  15.  Tendencies  Opposed  to  Technicalism.  And  yet 
it  is  no  compelling  rule  of  law  that  has  degraded  the 
modern  judge  to  his  present  position.  It  is  true  that 
the  technical  method  of  legal  science  dominates  the 
application  of  the  law;  but  like  every  other  scientific 

•  It  should  be  remembered  that  the  office  which  in  Rome  is  analogous 
to  the  English  judge,  is  that  of  the  consulting  jurist  delivering  "responsa." 
It  is  true,  however,  that  in  England  also  the  system  of  appeals  and  of 
judicial  benches  has  taken  root,  although  partly  in  a  different  fashion. 


§15]       TREND  AGAINST  TECHNICALISM          67 

doctrine  it  is  bound  to  give  way  at  any  time  before  a 
better  understanding  of  the  truth.  There  was  indeed 
a  vigorous  countercurrent  noticeable  in  the  scientific 
treatment  of  the  law  as  early  as  the  17th  century.  The 
doctrine  of  the  Law  of  Nature,  which  ruled  the  minds 
of  lawyers  throughout  the  18th  century,  and  has  really 
never  disappeared  altogether,  can,  in  part,  be  explained 
in  no  way  but  as  a  reaction  against  the  technical  method. 
In  England,  the  classical  country  of  free  judicial  decision, 
it  has  always  been  hard  to  understand  what  all  this 
"Law  of  Nature"  meant.7 

The  teachers  of  the  Law  of  Nature  raised  the  question, 
quite  seriously,  which  law  was  entitled  to  precedence 
wrhere  the  law  enacted  by  the  State  and  the  Law  of 
Nature  were  in  conflict.  There  were  few  who  would 
have  doubted  that  the  judge  was  bound  to  decide  accord- 
ing to  the  Law  of  Nature  wherever  the  written  law 
failed  him.  The  doctrine  of  the  Law  of  Nature,  as  such, 
has  lost  its  power  over  the  minds  of  lawyers,  yet  its 
seed  has  borne  fruit,  and  German  legal  science,  in  many 
respects,  is  still  unconsciously  imbued  with  its  spirit. 
This  is  true,  in  particular,  with  reference  to  the  doc- 
trine of  the  non-compulsory  effect  of  statutes.  The 
rule  that  the  written  law  cannot  determine  questions 
peculiarly  within  the  province  of  scientific  expert  knowl- 
edge has  beyond  a  doubt  won  back  for  the  cause  of  free 
decision  a  good  part  of  the  lawyers'  law.  Among  such 
non-compulsory  parts  of  statutes  are  classed  especially 
(in  the  opinion  of  many)  provisions  regarding  the  theory 
of  the  sources  of  law,  and  the  method  of  applying  the 
law.  Both  these  subjects  must  therefore  be  left  to 
free  scientific  discussion.  Similarly,  according  to  the 

7  Bergbohm,  "Jurisprudenz  und  Rechtsphilosophie,"  p.  331;  Bryce, 
"Studies  in  History  and  Jurisprudence,"  vol.  2,  p.  177.  Holland,  "Ele- 
ments of  Jurisprudence,"  8th  ed.f  p.  viii,  calls  the  German  Law  of 
Nature  "jurisprudence  in  the  air." 


68       EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

accepted  view,  definitions  in  a  statute  are  in  no  way 
binding  upon  legal  science,  at  least  as  regards  private 

law.8 

********* 

Let  us  here  quote  the  following  from  the  official  notes 
to  article  1  of  the  preliminary  draft  of  the  new  Swiss 
Civil  Code.9  "...  During  a  period  not  alto- 
gether passed  away,  people  were  influenced  by  the 
illusion  that  the  court  would  always  and  in  all  cases 
apply  the  formulated  law,  if  not  according  to  the  letter, 
according  to  its  meaning  and  spirit.  Yet  this  assump- 
tion is,  in  many  cases,  not  verified.  The  proposal  to 
recognize  the  real  condition  of  things,  as  made  in  this 
draft,  is  likely  to  meet  with  the  objection  that  the  judge 
would  thereby  become  too  independent.  He  will, 
indeed,  be  more  independent  than  he  is  now  in  those 
places  where  he  is  expected  to  derive  absolutely  every- 
thing from  the  statute,  even  if  by  the  most  questionable 
tricks  of  interpretation.  But  it  shows  a  higher  con- 
ception of  his  office  not  to  expect  of  him  such  per- 
formances. He  should  have  the  right  to  recognize 
that  there  are  in  the  statute  'lacunae'  which  cannot  be 
filled  by  construction.  After  he  has  determined  that 
fact  he  will  render  his  decision,  not  on  the  assumption 
that  the  statute  covers  everything,  but  that  the  whole 
body  of  the  law  is  sufficient  for  all  cases,  and  will  pre- 
sume the  existence  of  such  rule  as  he  would  consider 

«  [A  number  of  paragraphs  here  omitted  deal  with  special  provisions 
in  the  Codes  of  France,  Germany,  and  Switzerland.  —  TRANSL.] 

•  [The  text  of  this  article  is  as  follows: 

"The  Civil  Code  applies  to  all  cases  for  which  it  contains  provisions, 
either  according  to  its  letter  or  its  spirit. 

"If  the  Code  contains  no  provision  applicable  to  the  question  at  issue, 
the  judge  shall  decide  according  to  customary  law,  and  where  that  is 
also  absent,  according  to  recognized  legal  doctrine  and  science. 

"In  the  absence  of  all  these  sources,  he  shall  render  judgment  in  accord- 
ance with  such  rules  as  he  would  enact  if  he  were  the  legislator."  — 
TRANSL.] 


§15]       TREND  AGAINST  TECHNICALISM          69 

proper  in  reference  to  the  whole  body  of  the  law  if  he 
were  legislator." 

§  16.  Approximation  to  Free  Decision.  These  admir- 
able words  describe  exhaustively  the  task  devolving 
upon  the  judge  under  the  principle  of  freedom  of 
decision.  Notice  the  further  statement  that  "Such  is  in 
reality  the  practice  even  now."  This  refers,  to  be  sure, 
to  the  special  character  of  the  administration  of  law  in 
Switzerland,  where  the  adoption  of  the  Roman  law  and 
the  bureaucratization  of  the  bench  was  never  carried 
out  completely.  But  the  practice  elsewhere  is  not 
different.  It  is  significant,  however,  that  judicial 
decisions  are  rarely  based  upon  analogy  or  on  the  spirit 
of  the  statute.  These  are  regarded  as  being  so  indefinite 
that  thereby  the  door  would  be  opened  wide  to  freedom 
of  decision.  It  seems  as  if  the  courts  were  actually 
afraid  of  their  unaccustomed  freedom.  Far  more  fre- 
quently the  decisions  employ  certain  undefined  and 
undefinable  conceptions  which  have  been  adopted  by 
legal  writers  and  lawmakers,  sometimes  avowedly  and 
more  often  unconsciously,  for  the  purpose  of  affording 
an  opportunity  for  freedom  of  decision,  for  example, 
such  terms  as  "the  nature  of  the  subject-matter," 
"implied  intent,"  "good  faith,"  or  the  "custom  of  the 
trade." 

No  other  court,  sitting  in  a  jurisdiction  where  the 
technical  method  prevails,  has  succeeded  in  acquiring 
so  much  freedom  as  the  Court  of  Cassation  at  Paris. 
To  this  circumstance  we  owe  some  of  the  most  fruitful 
juridical  ideas  of  the  age.  Among  these  must  be  counted 
liability  for  accident  and  the  negligence  of  a  stranger, 
the  rules  against  unfair  competition,  the  development 
of  copyright,  and  the  law  of  insurance.  By  the  decisions 
of  the  Paris  Court  of  Cassation  so  many  new  ideas  have 
been  infused  into  French  civil  law,  statutes  have  been 


70      EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

interpreted  so  frequently  in  a  manner  deviating  widely 
from  the  intention  of  the  legislator,  that  one  may  prop- 
erly say:  Whoever  knows  merely  the  statutory  law 
of  France  has  no  conception  of  the  law  as  it  actually 
there  exists.  In  Germany  the  former  Hanseatic 
Supreme  Court  of  Appeals  at  Liibeck,  the  Appellate 
Court  of  Commerce  at  Nuremberg,  and  subsequently 
the  Imperial  Supreme  Court  of  Commerce  (and  the 
Imperial  Court  itself,  at  least  in  commercial  cases,  in 
which  the  courts  have  always  been  allowed  to  exercise 
a  degree  of  freedom),  have  proven  that  German  courts 
are  also  capable  of  elevated  thought  and  creative  ideas 
if  they  are  allowed  free  play. 

The  Austrian  Supreme  Court  has  a  way  of  adhering 
to  the  words  of  the  statute  with  scrupulous  meticulosity, 
and  rarely  with  beneficial  results.  Granting  that  its 
decisions  have  many  excellent  characteristics  in  other 
respects,  yet  it  has  become  manifest  that  a  preference 
for  strict  interpretation  does  not  even  assure  the  advan- 
tage of  certainty.  Words  are  extremely  imperfect  tools, 
and  nobody  has  ever  succeeded  in  mastering  real  things 
by  means  of  mere  words. 

How  has  it  been  possible,  notwithstanding  the  many 
influences  pushing  in  the  direction  of  technical  decision, 
that  the  administration  of  the  law  has  so  often  been  able 
to  throw  off  its  fetters? 

For  one  thing,  law  is  not  a  rigid  dogma,  but  a  living 
power.  The  mere  fact  that  a  statute  has  been  adopted 
does  not  prove-that  it  is  in  force,  and  from  the  intention 
of  the  legislator  you  can  by  no  means  infer  how  it  may 
work  out.  The  various  civil  codes  consist  in  part  of 
statutes  proper,  in  part  of  codified  lawyers'  law.  But 
no  matter  how  nearly  alike  you  may  make  the  two 
externally,  you  will  never  succeed,  for  example,  in 
giving  the  same  force  to  the  rule  relating  to  the 


§16]  COURTS  OF  FREE  DECISION  71 

retroactive  power  of  performed  conditions  as  to  the  pro- 
hibition of  usurious  contracts.  Lawyers'  law,  if  for  no 
reason  but  that  the  State  as  such  has  no  particular 
interest  in  its  subject-matter,  is  always  in  essence  an 
instruction  imparted  by  "written  reason,"  rather  than 
a  command.  But  even  a  statute  proper  is  really  effec- 
tive only  by  its  indwelling  force.  If  it  cannot  overcome 
the  resistance  of  the  environment  it  loses  its  vigor,  is 
applied  erroneously,  or  grows  absolute.  There  is  some 
consolation  in  the  idea  that  the  administration  of  law 
sometimes  attains  simple  justice  in  a  roundabout  way 
when  a  statute  blocks  the  straight  road.  At  the  same 
time  it  is  not  the  business  of  legislation  to  compel  it 
to  take  the  roundabout  road. 

III.  CHARACTERISTICS  OF  THE  PRINCIPLE  OF  FREE 
JUDICIAL  DECISION 

§  17.  Free  Decision  Not  Arbitrary.  A  modern  judge 
who  assumes  it  to  be  his  duty  always  to  base  his  deci- 
sions on  an  express  statute  naturally  will  ask  what  is 
to  serve  as  foundation  for  the  administration  of  justice 
if  that  of  a  statute  is  to  be  withdrawn. 

One  might  be  tempted  to  reply  simply  that  in  every 
period  of  time  there  has  existed  a  justice  not  hedged 
about  by  code  sections.  Such  justice,  however,  is  by 
no  means  arbitrary.  As  already  emphasized  at  the 
opening  of  this  essay,  it  grows  out  of  the  principles  of 
juridical  tradition.  Every  kind  of  freedom  of  decision 
starts  with  juridical  tradition  and  tends  toward  what 
Stammler  has  called  "correct  law"  ("Richtiges  Recht"). 
The  very  peculiarity  of  the  judicial  office  is  the  assump- 
tion that  the  judge's  utterance  represents,  not  his  per- 
sonal opinion,  but  the  law.  And  this  law  is  found 
primarily  in  the  legal  records  of  the  past,  in  statutes, 
in  decisions  of  courts,  in  legal  literature.  No  Roman 


72      EHRLICH:   FREEDOM  OF  DECISION  [Cn.  II 

jurist  ever  deviated  farther  from  the  traditional  rules 
than  he  was  compelled  to  do  by  necessity.  Blackstone, 
in  a  famous  passage  of  his  Commentaries,  speaking  of 
the  English  common  law,  represents  the  English  judge 
as  only  declaring,  not  as  making,  the  rules  of  law.10 
Free  decision  is  conservative,  as  every  kind  of  freedom 
is;  for  freedom  means  responsibility,  while  restraint 
shifts  responsibility  upon  other  shoulders. 

§  18.  The  Basis  of  Free  Decision.  No  rule  is  just  for 
all  times.  Every  form  of  justice,  like  all  formulated 
law,  is  the  outcome  of  historical  development.  We  have 
already  pointed  out  that  lawyers'  law,  the  child  of  free 
decision,  is  composed  of  rules  derived  from  the  nature 
of  social  relations  and  changing  as  these  change.  The 
great  mass  of  rules  of  decision  are  determined,  at  any 
given  time,  by  the  changing  social  conditions  to  which 
they  are  applied.  Stammler  seems  to  have  found 
the  right  way  of  putting  it;  he  refers  to  the  story  of 
Herodotus  concerning  the  Medes,  who,  after  their 
separation  from  the  Assyrians,  living  without  statutes, 
elected  Dejoces  their  King,  because  in  their  contentions 
he  had  proven  himself  a  just  judge;  then  he  adds: 
"The  skillful  judge  whose  decisions  delighted  the  people, 
had  understood  well  how  to  adjudicate  newly  arising 
issues  on  the  basis  of  principles  derived  from  traditional 
customs.  For  we  may  safely  assume  that  there  also 
such  things  existed  as  property,  binding  contracts, 
family  authority,  individual  right  of  inheritance,  etc., 
and  that  the  question  was  how  to  maintain  these  prin- 
ciples in  each  particular  controversy.  It  would  be  idle 
to  imagine  that  he  administered  his  function  of  arbitrator 
without  any  such  basis  of  positive  institutions." 

§  19.  Legal  Growth  as  Affected  by  the  Lawyers.  Long 
ago  von  Biilow  proved  convincingly  that  all  declaration 

l«  Blackstone's  Commentaries  (Cooley,  3d  ed.),  p.  69. 


§19]       APPLICATION  OF  LAW  CREATIVE        73 

of  the  law,  even  if  it  aims  to  be  simply  application  of 
law,  is  by  its  very  nature  creative.  Every  species  of 
legal  science,  consciously  or  unconsciously,  tends  to 
progress  through  the  formulated  law  beyond  the  formu- 
lated law.  The  difference  between  free  decision  and 
technical  decision  is  therefore  not  so  much  that  the 
former  may  go  beyond  the  statute,  but  lies  rather  in  the 
manner  of  doing  so.  For  the  technical  method  requires 
that  its  work  of  art  be  achieved  only  by  means  of 
certain  devices  of  legal  thinking  from  which  no  varia- 
tion must  be  permitted ;  while  free  decision  counts  also 
upon  the  element  of  creative  thought  by  great  individual 
minds. 

One  sees  that  the  technical  method  is  a  child  of  the 
same  spirit  as  the  system  of  a  collegiate  judiciary,  and 
the  multiplicity  of  appeals.  All  these  devices  are 
intended  to  eliminate  as  far  as  possible  the  personality 
of  the  judge.  That  aim,  however,  will  forever  be  futile. 
For  each  application  of  a  general  rule  to  a  particular 
case  is  necessarily  influenced  by  "the  personality  of  the 
judge  who  makes  it.  Legal  tradition  itself,  while  a 
result  of  social  processes,  is  at  the  same  time  the  work 
of  the  men  who  labor  at  it.  Similarly,  this  tradition 
is  constantly  being  newly  shaped  and  remodeled  by 
those  who  continue  such  labors.  No  doubt  the  Roman 
law  would  show  quite  a  different  aspect  if,  for  so  much 
of  it  as  has  come  down  to  us,  not  Ulpian  and  Paulus 
but  Javolenus  and  Celsus  had  been  the  spokesmen.  In 
the  common  law  of  to-day,  no  matter  how  completely 
it  may  be  dominated  by  the  technical  method,  every- 
body with  the  requisite  knowledge  can  accurately  dis- 
tinguish the  component  parts  which  as  late  as  the  19th 
century  have  been  introduced  into  the  edifice  by  such 
great  builders  as  Savigny,  Puchta,  Arndts,  Vangerow, 
Bahr,  Jhering,  Windscheid,  and  Bekker. 

\ 


74      EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

§  20.  The  Personality  of  the  Judge.  Thus  the  admin- 
istration of  justice  has  always  contained  a  personal 
element.  In  all  ages,  social,  political  and  cultural  move- 
ments have  necessarily  exerted  an  influence  upon  it; 
but  whether  any  individual  jurist  yields  more  or  less  to 
such  influences,  whether  he  is  more  inclined  in  his  "quae 
traditae  sunt  perseverare"  or  rather  "ingenii  qualitate 
et  fiducia  doctrinae  plurima  innovareconstituit,"  depends 
of  course  less  on  any  theory  of  legal  method  than  on  his 
own  personal  temperament.  The  point  is  that  this 
fact  should  not  be  tolerated  as  something  unavoidable, 
but  should  be  gladly  welcomed.  For  the  one  important 
desideratum  is  that  his  personality  must  be  great  enough 
to  be  properly  intrusted  with  such  functions.  The 
principle  of  free  decision  is  really  not  concerned  with  the 
substance  of  the  law,  but  with  the  proper  selection  of 
judges;  in  other  words,  it  is  the  problem  of  how  to 
organize  the  judiciary  so  as  to  give  plenty  of  scope  to 
strong  personalities.  Everything  depends  upon  that. 
Until  there  is  a  change  in  that  regard,  all  legal  provisions 
will  remain  as  ineffective  as  section  7  of  the  Austrian 
Civil  Code.11 

It  is  fair  to  doubt,  we  must  admit,  whether  the  usual 
course  of  promotion  within  the  bureaucracy  is  the  best 
means  of  making  the  administration  of  justice  proceed 
on  grand  lines.  It  is  significant  that  the  Paris  Court 
of  Cassation,  the  only  court  on  the  European  con- 
tinent that  regularly  exercises  the  power  of  free  decision 
(in  fact  though  not  in  name),  has  attained  this  goal  as 

11  [The  section  of  the  Austrian  Civil  Code  referred  to  reads:  Section 
7.  "Where  the  case  cannot  be  decided  either  according  to  the  literal  text 
or  the  natural  meaning  of  a  statute,  regard  shall  be  had  to  analogous 
provisions  clearly  contained  in  the  statutes,  and  to  the  principles  apply- 
ing to  provisions  regarding  similar  matters.  If  the  case  is  still  doubtful, 
it  shall  be  decided  after  carefully  collecting  and  considering  all  sur- 
rounding circumstances,  according  to  the  principles  of  natural  justice." 
—  TRANSL.] 


PERSONALITY  OF  THE  JUDGE  75 

successor  to  the  French  Court  of  Parliament,  of  which 
it  has  been  said  that  "though  its  members  bought  their 
places  with  money,  yet  it  gave  to  France  the  best  judges 
she  has  ever  had."  It  is  significant  also  that  in  Ger- 
many the  only  courts  which  sometimes  have  an  oppor- 
tunity for  free  decision  are  the  Courts  of  Commerce, 
which  to  some  extent  are  placed  outside  of  the  regular 
bureaucratic  hierarchy,  or  at  least  formerly  were  so 
placed.  Assuredly  these  institutions  are  no  proper 
models.  Examples  should  rather  be  sought  in  Rome 
or  in  England,  where  the  courts  gather  into  their  mem- 
bership the  intellectual  and  social  flower  of  the  nation 
and  where  the  most  eminent  men  consider  a  seat  on  the 
bench  the  highest  goal  and  the  most  dignified  com- 
pletion of  their  life's  work.  The  names  of  the  great 
English  judges,  such  as  Lord  Mansfield,  Lord  Eldon, 
Lord  Bowen,  or  Sir  George  Jessel,  are  better  known  in 
England  than  almost  any  famous  jurist  is  known  on  the 
Continent.  No  doubt  it  has  happened  more  than  once 
on  the  Continent  that  men  of  that  caliber  have  been 
raised  to  the  bench,  but  nobody  knows  of  them  outside 
a  narrow  circle  of  the  initiated,  and  their  fame  does  not 

survive  their  own  group  of  associates.12 

********* 

It  would  be  unfair  if  we  failed  to  recognize  that  there 
are  further  and  perhaps  better-founded  reasons  for  the 
existing  antipathy  to  free  legal  decision.  One  such 
reason  may  be  found  especially  in  traditional  concep- 
tions regarding  the  proper  limits  of  the  functions  of 
Government  and  the  separation  of  powers.  In  the 
tendency  to  make  the  bureaucratic  judge  base  his 
judicial  opinion  invariably  on  the  letter  of  the  statute 
we  may  find  a  good  portion  of  the  old-fashioned  Liberal 

12  [Some  omitted  paragraphs  deal  with  special  conditions  in  civil  law 
countries.  —  TRANSL.] 


76       EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

distrust  of  the  Government;  and  on  the  other  hand  it 
will  take  a  long  time  before  the  idea  will  be  thoroughly 
familiar  that  the  function  of  legislation  does  not  extend 
to  every  form  of  lawmaking  but  is  confined  to  the 
passing  of  express  statutes.  Those  ways  of  thinking, 
however,  really  belong  to  a  theory  of  the  State  which 
is  already  antiquated,  although  like  every  political 
theory  it  was  the  scientific  expression  of  conditions 
historically  developed. 

IV.  THE  TASKS  AWAITING  FREEDOM  OF  JUDICIAL 
DECISION 

§  21.  The  Work  of  Legal  Science.  We  may  now  cast 
a  glance  at  the  science  of  law,  and  consider  what  tasks 
will  remain  for  it  after  technicalism  has  been  supplanted 
by  free  decision'. 

First  of  all,  it  becomes  plain  that  after  this  change 
there  can  be  no  further  place  for  the  traditional  essay 
on  rules  of  construction.  The  moment  it  is  recognized 
that  a  statute  provides  only  for  what  it  provides,  and 
that  what  is  not  so  provided  simply  remains  unprovided, 
there  can  be  no  further  excuse  for  using  a  hairsplitting 
machine,  —  or  as  it  were,  for  squeezing  decisions  out  of 
a  statute  with  a  hydraulic  press.  Many  tears  will  not 
be  shed  over  the  decease  of  that  misshapen  bantling 
of  our  "reception"  of  Roman  law.13  Anybody  can  see 
that  the  basis  of  a  decision  ought  to  be  that  it  is  just, 
or  that  it  is  equitable,  or  that  it  is  in  accordance  with 
the  statute  or  legal  tradition.  Let  us  hope,  however, 
that  we  may  be  approaching  a  time  when  nobody  will 
be  able  to  understand  why  a  decision  should  be  ren- 
dered for  no  reason  than  that  somebody  has  written  a 
book  in  which  he  construed  the  law  to  mean  what  the 

i*  "[Rezeption"  or  "reception"  refers  to  the  adoption  of  the  civil  law, 
or  Roman  law  as  modified  by  mediaeval  jurists  in  Germany  and  other 
countries  of  the  Continent.  —  TRANSL.J 


§21]         PROVINCE  OF  LEGAL  SCIENCE  77 

decision  says  it  means.  To  be  sure,  a  great  deal  of 
respectable  mental  power  has  been  expended  upon  these 
essays  of  the  traditional  kind  —  but  for  what  purpose? 
In  Macaulay's  phrase,  one  may  move  one's  legs  in  the 
treadmill  as  well  as  on  the  high  road;  but  on  the  road 
they  carry  us  forward,  while  in  the  treadmill  we  remain 
in  the  same  place. 

It  is  useless  to  inquire  what  roads  legal  science  shall 
travel  after  it  has  turned  its  back  on  fruitless  labors. 
The  human  mind  is  inexhaustible,  and  the  number  of 
unsolved  problems  in  every  field  is  infinite.  It  would 
be  arrogance  to  play  the  prophet  in  such  matters.  But, 
in  view  of  the  amount  of  energy  that  is  wasted  in  tread- 
mills of  various  kinds,  one  may  be  permitted  to  call 
attention  to  several  attractive  landscapes  which  may 
be  reached  by  commodious  highways. 

§  22.  The  Practical  Operation  of  the  Law.  Certain 
it  is,  first  of  all,  that  the  primary  task  of  legal  science, 
to  inquire  into  the  meaning  of  legal  rules,  will  retain 
its  rank.  Modern,  civil  codes  require  scientific  inter- 
pretation more  urgently  than  any  other  species  of 
formulated  law.  They  are  themselves  the  result  of  legal 
science,  and  are  capable  to  a  much  higher  degree  than 
ordinary  legislation  of  being  perfected,  and  developed 
by  jurisprudence. 

The  discovery  of  the  hidden  meaning  of  formulated 
or  unformulated  law,  however,  is  by  no  means  the  whole 
of  the  task.  A  legal  rule  must  be  treated  not  like  a  rigid 
dogma  but  like  living  energy.  After  one  has  found  the 
meaning  of  a  legal  provision,  obviously  he  still  has  to 
show  how  it  works.  That,  however,  does  not  depend 
on  its  interpretation,  but  on  its  inherent  force,  the 
nature  of  the  society  for  which  it  was  made,  and  the 
character  of  those  who  apply  it.  It  is  the  business  of 
legal  science  to  teach  the  law  as  it  actually  works. 


78      EHRLICH:   FREEDOM  OF  DECISION  [Cn.  II 

Whoever  knows  but  the  "intent  of  the  legislator"  is  still 
far  from  knowing  the  law  that  is  really  in  effect. 

In  this  sense  the  traditional,  dogmatic  conception 
of  law  may  be  contrasted  with  a  dynamic  conception. 
For  the  latter,  the  problem  is  not  simply  to  know  what 
a  rule  means,  but  how  it  lives  and  works,  how  it  adapts 
itself  to  the  different  relations  of  life,  how  it  is  being 
circumvented  and  how  it  succeeds  in  'frustrating  cir- 
cumvention. Whoever  assumes,  as  is  done  so  com- 
monly by  the  traditional  school  as  a  matter  of  course, 
that  the  law  works  out  precisely  as  the  legislator  intended, 
ignores  the  long  distance  separating  the  instrument 
from  the  performance  and  the  performance  from  its 
consequences  in  all  human  affairs.  Heretofore  the 
historians  of  the  law  have  been  almost  alone  in  inquiring 
how  the  law  actually  works;  occasionally  economists 
and  specialists  in  commercial  law  have  also  done  so, 
but  to  the  systematic  student  of  the  law  such  questions 
have  unfortunately,  for  the  most  part,  seemed  outside 
of  his  proper  sphere.14 

Here  we  must  turn  first  to  the  decisions  of  the  courts. 
From  these  principally  we  may  learn  the  "jus  quod 
est,"  from  them  alone  we  can  gather  what  rules  of 
decision  have  actually  entered  into  daily  life,  and  how 
they  have  done  so.  But  it  is  not  enough  to  cite  decisions 
in  a  text,  or  in  notes,  and  to  approve  or  condemn  them 
according  as  they  are  deemed  correct  or  otherwise.  A 
legal  decision  is  always  the  result  of  a  number  of  factors 
influencing  the  judge;  meaning  and  text  of  a  rule  is  one 
of  these  factors,  but  not  the  only  one.  Every  decision 
expresses  some  actually  existing  social  movement;  even 

H  In  my  work  "Das  zwingende  Recht  und  nichtzwingende  Recht  im 
burgerlichen  Gesetzbuch  fur  das  Deutsche  Reich"  I  have  tried  to 
treat  the  German  Civil  Code  in  that  manner.  This,  however,  is  par- 
ticularly difficult  in  regard  to  a  system  of  law  still  in  course  of  develop- 
ment. 


§22]          OPERATION  OF  LEGAL  RULES  79 

the  most  abstruse  scholastical  reason,  the  most  manifest 
misinterpretations  or  conscious  perversions  of  law,  at 
least  help  to  show  these  facts  as  coefficients  of  social 
tendencies.  One  of  the  duties  of  legal  science  is  to 
examine  the  origin,  nature,  effect,  and  value  of  the  tenden- 
cies that  become  apparent  in  legal  decisions,  and  thus  to 
furnish  a  picture  of  what  is  going  on  in  the  administration 
of  justice  and  what  the  causes  thereof  may  be.15 

Next  come  the  actual  legal  transactions  as  such, 
even  when  they  have  given  no  occasion  for  resort  to 
courts  or  governmental  agencies.  So  far  as  boards  of 
trade,  banks,  factories  and  shops  are  concerned,  we  can 
extract  some  instruction  from  the  literature  of  eco- 
nomics and  commercial  law;  similarly,  as  regards  the 
conditions  of  labor,  from  sociological  writings  such 
as  have  furnished  the  material  for  Lotmar's  broadly 
conceived  work.16  The  enormous  mass  of  material 
piled  up  in  the  offices  of  notaries  and  recorders  of  deeds 
still  waits  for  the  investigator.  How  much  might  be 
garnered  here,  not  merely  from  the  economic  but  also 
the  juristic  standpoint,  is  sufficiently  apparent  from 
works  like  that  of  Bartsch  on  the  Austrian  law  concerning 
the  recording  of  titles  to  real  property.  How  far  in 
advance  of  the  systematic  lawyers  are  the  legal  historians 
in  the  scientific  treatment  of  archives!  As  far  as  I  can 
see,  there  is  not,  in  all  of  legal  literature,  a  single 
scientific  work  on  the  science  of  modern  legal  documents. 
That  is  why  it  is  possible  to  dig  through  a  whole  library 
of  works  on  testamentary  succession,  to  find  therein 
numbers  of  clever  and  sagacious  rules  of  construction 
but  not  a  word  to  show  what  sort  of  wills  are  commonly 
drawn  at  the  present  time. 

i*  In  my  paper  on  "Die  stillschweigende  Willenserklarung,"  I  have 
tried  to  make  use  of  the  decisions  in  this  manner. 

i«  [SeeLotmar,  "Der  Arbeitsvertrag,"  2  vols.  Leipzig,  1902,  1908.  — 
TRANSL.] 


80      EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

§  23.  Legal  Regulation  and  Actual  Life.  We  must 
further  inquire  into  the  facts  of  daily  life,  apart  from 
their  legal  aspect.  We  lawyers  are  always  inclined 
to  assume  that  our  rule  of  decision  is  a  faithful  expression 
of  how  things  are  actually  done,  —  that  a  rule  of  law 
is  also  a  rule  of  life  as  it  is.  But  in  reality  these  may 
be  two  very  different  things.  In  reality  life  creates 
primarily  its  own  rules.  How  small  is  the  influence 
of  the  law  of  family,  as  formulated  in  rules,  on  the  actual 
conduct  of  family  life;  how  different  the  interpretation 
and  execution  of  contracts  in  actual  business  from  the 
interpretation  by  the  courts  in  the  few  cases  in  which 
a  decision  passes  upon  them! 

Learned  Romanists  reveal  to  us  that  what  was  in 
legal  theory  said  to  be  the  exclusive  property  of  the 
"paterfamilias"  was  in  reality  held  in  common  by  his 
family,  and  that  the  "filiusfamilias,"  who  according 
to  the  strict  law  had  a  status  almost  identical  with  that 
of  a  slave,  had  in  reality  a  position  entirely  different, 
so  great  was  sometimes,  even  in  Rome,  the  difference 
between  the  archaizing  rule  of  law  and  the  rule  of  life. 
And  we  may  be  sure  that  to-day  this  difference  is  no 
less,  considering  that  the  rule  of  law  is  based  in  part  on 
alien  standards  of  decision,  Roman  or  French,  while 
the  rule  of  life  has  grown  out  of  native  custom.  Does 
anybody  really  believe  that  anywhere  in  Germany  or 
Austria  fathers  actually  do  bestow  marriage  portions 
on  their  daughters  in  accordance  with  the  rules  of  the 
Civil  Code,  or  that  vendors  actually  do  make  good  the 
defects  of  their  wares  in  the  manner  the  law  provides? 

It  is  no  answer  to  say  that  these  are  matters  of  popular 
custom,  not  of  law ;  for  both  the  duty  of  giving  a  marriage 
portion  and  the  law  of  warranty  for  defects,  as  found  in 
the  much-lauded  Roman  law,  arose  themselves  out  of 
just  such  popular  custom.  In  every  healthy  course 


§23]      LEGAL  RULES  AND  ACTUAL  LIFE         81 

of  legal  development,  a  good  custom  will  become  trans- 
formed into  a  rule  of  law,  while  a  bad  custom  will  be 
opposed  by  both  legislation  and  the  decisions  of  the 
courts;  but  for  both  purposes  it  is  necessary  first  of  all 
to  know  the  custom.17  However,  unless  one  narrowly 
identifies  all  law  with  rules  of  decision,  one  will  have 
to  admit  that  such  customs,  being  forms  of  organiza- 
tion of  modern  society,  are  undoubtedly  of  a  jural 
nature,  and  the  reason  they  are  not  enforced  legally  is 
simply  that  the  courts  are  not  governed,  as  they  were 
in  Rome,  by  native  rules  of  decision,  but  for  the  most 
part  by  alien  or  antiquated  ones.  That,  however,  need 
not  keep  a  lawyer  from  investigating  them.  And  it 
would  be  worth  while  some  day  to  make  an  attempt  at 
delineating  the  law  of  family  of  the  present  day,  — 
meaning  thereby  the  law  according  to  which  the  mem- 
bers of  families  actually  live,  not  the  law  according  to 
which  lawsuits  regarding  family  quarrels  are  decided.  Or 
one  might  undertake  to  show  what  property  is  actually 
like  in  woodland  and  meadow,  field  and  pasture,  instead 
of  how  it  looks  in  the  Civil  Code.  That,  to  be  sure, 
would  require  not  only  great  learning,  especially  of  the 
historical  sort,  but  also  an  extraordinary  sense  of  realities. 
But,  if  it  were  done  successfully,  surely  "the  work 
would  praise  the  master."  For  (to  quote  from  Goethe's 
"Faust")  "where'er  you  strike  it,  life  is  interesting." 

17  In  Rome,  as  elsewhere,  neighbors  were  accustomed  to  consider  each 
other's  convenience;  in  cases  of  litigation  between  neighbors,  the  duties 
which  were,  according  to  such  custom,  mutually  owing  to  them  became 
the  basis  of  judgment.  Such  was  the  origin  of  the  rules  enumerated  in 
Windscheid's  "Pandekten,"  vol.  1,  §  169,  lines  1-8.  To-day  also  neigh- 
bors are  in  the  habit  of  considering  each  other's  convenience  in  certain 
respects,  but  this  custom  is  hardly  ever  utilized  to  arrive  at  a  decision, 
simply  because  lawyers  know  nothing  about  it.  Consequently  it  cannot 
develop  into  a  rule  of  law.  The  limitations  of  property  rights  in  favor 
of  neighbors  which  are  enumerated  in  Windscheid's  "Pandekten,"  and 
which,  having  arisen  out  of  Roman  custom,  became  part  of  Roman 
law  —  these,  and  these  alone,  every  lawyer  is  supposed  to  know  —  at 
least  at  the  time  of  his  examination. 


82       EHRLICH:    FREEDOM  OF  DECISION  [Cn.II 

§  24.  Legal  Science  and  the  Courts.  Yet  there  are 
still  further  problems  of  quite  a  different  nature  waiting 
for  legal  science  to  solve  them.  Whoever  desires  that 
we  possess  a  body  of  creative  decisions  must  of  course 
desire  also  a  creative  science  of  law.  Manifestly,  the 
tasks  of  the  theoretical  writer  and  the  practical  lawyer 
are  closely  akin.  The  task  of  the  modern  jurist  cannot 
be  essentially  different  from  that  of  the  jurist  in  all  past 
ages,  and  especially  from  that  of  the  Roman  jurist. 
It  would  be  a  great  mistake  to  imagine  that  the  theoreti- 
cal disputes  of  the  Romans  had  to  do  with  what  were 
the  traditional  rules.  Their  discussions  turned  rather 
upon  what  would  be  the  juster  and  more  useful  decision. 
As  far  back  as  Savigny  and  his  immediate  pupils,  legal 
science  has  been  called  one  of  the  sources  of  law,  and  ever 
since  the  celebrated  paper  by  Jhering  on  "Unsere  Auf- 
gabe"  appeared,  there  has  been  no  lack  of  voices  calling 
for  a  creative  science  of  law.  Even  the  old  civilian 
science  was  creative  to  a  degree,  —  although  it  did  not 
by  any  means  aim  to  be  so.  The  law  of  possession,  of 
agency,  of  contracts  between  absent  parties,  of  agree- 
ments in  favor  of  third  parties,  of  unjust  enrichment 
and  many  other  subjects,  may  very  properly  be  called 
the  products  of  civilian  science. 

It  is  true  that  the  desire  to  have  an  authority  for 
everything,  even  where  the  authorities  were  obstinately 
silent,  created  obstacles  at  every  step.  What  pitiful 
citations  Jhering  deemed  it  necessary  to  furnish  in  order 
to  make  palatable  to  himself  and  his  contemporaries 
one  of  his  cleverest  ideas,  the  theory  of  negative  interest 
in  a  contract!  It  is  certainly  not  the  business  of  legal 
science  to  predigest  for  the  Court  in  the  traditional 
manner  of  civilistic  essays  the  decision  of  any  case  that 
might  possibly  come  before  it.  In  most  cases  the  Court 
will  be  much  better  able  to  decide  an  actual  case  than  any 


§24]          COURTS  AND  LEGAL  SCIENCE  83 

theoretical  author  can  do  in  advance.  This  is  a  matter 
in  which  science  must  learn  from  the  actual  administra- 
tion of  the  law,  not  the  courts  from  science. 

Sometimes,  however,  the  conditions  are  of  the  opposite 
character.  This  is  so  especially  when  the  courts  misun- 
derstand the  great  social,  economic  or  political  problems 
that  may  be  involved  in  cases  coming  before  them,  and 
still  more  so  where  they  are  confronted  with  an  entirely 
new  subject  which  cannot  be  dealt  with  except  by 
extensive  investigations  such  as  no  man  can  under- 
take who  is  immersed  in  the  ever-changing  business 
of  practical  life.  It  would  be  deplorable  if  a  legal 
science  could  exist  without  mirroring  the  great  move- 
ments and  intellectual  currents  that  rouse  and  animate 
our  times. 

§  25.  Development  of  the  Law  of  Evidence.  One  of  the 
most  important  tasks  of  this  sort  to  which  legal  science 
must  address  itself  in  the  future  is  the  creation  of  an 
adequate  law  of  evidence.  In  former  centuries  this 
matter  was  frequently  treated  by  the  jurists,  and  many 
valuable  results  of  scientific  investigations  became 
embodied  in  the  ancient  codes  of  procedure.  In  this 
field,  however,  more  than  anywhere  else,  the  fixation 
of  the  law  in  codes  and  statutes  seems  to  have  worked 
badly.  It  led  to  the  formal  or  "legal"  theory  of  proof, 
so  called,  and  gradually  imparted  to  the  law  of  evidence 
a  rigidity  which  became  at  last  insupportable.  The 
consequence  of  this  was  the  substitution  of  the  so-called 
"free  weighing  of  evidence"  for  the  formal  theory,  abolish- 
ing not  merely  the  formal  requirements  of  proof  but  all 
rules  of  evidence,  a  result  which  apparently  Glaser,  the 
principal  advocate  in  Austria  of  this  reform,  had  by  no 
means  intended.18 

i»  See  Glaser,  "Zur    Kritik    des  Zeugenbeweises,"  Gerichtssaal,  vol. 
33;  Glaser,  "Beitrage  zur  Lehre  vom  Beweis." 


84       EHRLICH:   FREEDOM  OF  DECISION  [CH.  II 

Such  was  the  origin  of  the  completely  anarchical 
conditions  with  which  we  are  still  contending  in  the  law 
of  evidence.  It  shows  what  power  mere  catch-phrases 
may  exercise  over  the  human  mind,  for  to  argue  for 
freedom  of  legal  decision  in  general  is  commonly  con- 
sidered highly  dangerous,  while  in  this  particular  field 
of  evidence  the  total  absence  not  merely  of  legal  limita- 
tions but  of  scientific  orderliness  is  accepted  as  a  matter 
of  course.  This  is  true  to  such  an  extent  that  the 
reversal  of  a  judgment  on  appeal  may  be  ordered  for 
the  most  trifling  error  of  law,  and  yet  not  for  the  greatest 
error  in  the  weighing  of  evidence.  As  if  under  some 
circumstances  a  neglect  of  rational  rules  for  the  weighing 
of  evidence  might  not  have  more  serious  consequences 
than  a  judgment  not  precisely  in  accord  with  some 
statutory  provision  of  substantive  law.  The  data 
collected  by  the  indefatigable  Hans  Gross  would  alone 
be  sufficient  to  furnish  material  for  erecting  the  edifice 
of  an  adequate  law  of  evidence.  This,  however,  ought 
not  to  be  fixed  by  statute  but  developed  by  jurists 
and  judges,  after  the  manner  of  the  English  law  of 
evidence. 

§  26.  Conclusion.  It  is  thus  apparent  enough  that 
there  will  be  no  lack  of  subjects  for  investigation  for 
legal  science  in  its  quest  for  more  modern  things  than 
are  to  be  found  in  the  traditional  fields  of  inquiry.  And 
we  may  well  expect,  if  lawyers  in  the  future  seriously 
turn  their  attention  to  problems  of  this  kind,  that  the 
prevalent  popular  notion  of  the  jurist  as  a  subtle,  acute 
dialectician  will  have  to  be  superseded  by  a  different 
ideal.  There  will  be  no  lament  over  this  change  of 
ideal.  Of  all  the  gifts  of  the  human  intellect,  logical 
acumen  is  the  least  fruitful.  There  is  profound  wisdom 
in  the  fact  that  German  legend  frequently  portrays  the 
devil  as  a  sharp  dialectician. 


§1]       GMELIN:  SOCIOLOGICAL  METHOD         85 


CHAPTER  III 

DIALECTICISM   AND  TECHNICALITY:    THE 
NEED  OF  SOCIOLOGICAL  METHOD 

BY  JOHANN  GEORG  GMELIN l 
I.    ON  THE  ART  OF  ADMINISTERING  JUSTICE 

§1.  CODES  AND  JUDICIAL  FUNCTIONS.— §2.  STATUTES 
AND  JUSTICE.— §3.  THE  DEMAND  FOR  REFORM.— §4.  THE 
WRITINGS  OF  ERNST  FUCHS.— §5.  CRITICISM  OF 
SUPREME  COURT  DECISIONS.  —  §  6.  MORE  DECISIONS 
CRITICIZED.— §7.  A  FALSE  METHOD.— §8.  THE  BETTER 
METHOD.  —  §  9.  CONCLUSION. 

1  [Justice  of  the  Court  of  Appeals  at  Stuttgart.     This  translation  is  of 
his  collection  of  essays  under  the  original  title  "Quousque"   (omitting 
the  first  and  third  essays),  Hanover,  1910,  Helwingsche  Verlagsbuch- 
handlung.     The  translation  is  by  Ernest  Bruncken.} 
AUTHOR'S    PREFACE 

The  [four]  papers  here  collected  [two  translated]  are  intended,  in 
connection  with  the  writings  of  Ernst  Fuchs,  of  Karlsruhe,  to  call  atten- 
tion to  some  of  the  rocks  toward  which  our  administration  of  justice  is 
steering  on  account  of  its  excessive  formalism  and  the  scholastic  and 
dialectical  method  on  which  that  formalism  is  based. 

How  long  is  this  idolatry  of  technicalities  to  last?  Where  will  it  carry 
us?  What  can  we  put  in  its  place?  These  are  questions  which  every 
judge  ought  to  ponder. 

The  first  two  publications  exhibit  the  small  beginnings  of  what  is 
now  with  me  a  settled  conviction.  Gradually  these  grew  to  such  an 
extent  that  in  the  fourth  paper,  a  sketch  of  which  was  originally  pub- 
lished in  "Wiirttembergische  Zeitschrift  fur  Rechtspflege  und  Verwal- 
tung,"  1910,  pp.  1  et  seq.,  I  could  make  the  attempt  to  set  forth  the 
positive  side  of  the  sociological  method.  The  third  essay,  on  the  "Lay 
Element  in  the  Criminal  Courts"  is  somewhat  loosely  connected  with 
the  general  subject,  yet  here  also  the  principal  idea  is  the  same  as  in  the 
other  papers,  to  wit:  antagonism  to  the  extreme  technicalization  of 
justice. 

There  is  much  still  to  be  done  in  the  way  of  studying  the  more  profound 
aspects  of  the  sociological  method,  and  there  is  much  material  still  to  be 
collected.  Let  there  be  many  earnest  collaborators  in  the  work! 

GMELIN. 

STUTTGART,  end  of  January,  1910. 


86        GMELIN :  SOCIOLOGICAL  METHOD  [  CH.  Ill 

II.    ON  THE  SOCIOLOGICAL  METHOD  IN  THE  ADMINIS- 
TRATION OF  JUSTICE 

§10.  LAW  AND  SOCIOLOGY.  —  §  11.  MERE  LOGICAL 
DEDUCTION  NOT  A  SUFFICIENT  METHOD.— §  12.  THE 
SOCIOLOGICAL  METHOD.— §13.  CRITICISM  OF  SUPREME 
COURT  DECISIONS.— §14.  ANALYSIS  OF  CRITICISMS  MADE 
BY  FUCHS.  —  §15.  FURTHER  CRITICISMS  BY  FUCHS.— 
§  16.  A  DIFFICULT  CASE.  —  §  17.  FURTHER  CRITICISMS 
ANALYZED.— §18.  THE  SUBJECT  CONTINUED.— §19.  THE 
SUPREME  COURT  SOMETIMES  SOCIOLOGICALLY  COR- 
RECT.—§20.  INDIVIDUAL  ERRORS  OR  FALSE  METHOD?— 
§21.  THE  PREVAILING  METHOD  NOT  WORKING 
PROPERLY.— §22.  THE  SENSE  OF  JUSTICE.— §  23.  THE 
THEORETICAL  CONCEPTION  OF  JUDGMENT.  —  §  24.  THE 
BALANCING  OF  INTERESTS.  —  §  25.  THE  NEED  OF  A 
CHANGE  IN  ATTITUDE.  —  §  26.  OBJECTIONS  TO  THE 
NEW  METHOD.— §27.  SOME  OBJECTIONS  REFUTED.— 
§28.  SOME  OPINIONS  REGARDING  THE  NEW  METHOD.— 
§29.  VIEWS  OF  DURINGER.  —  §  30.  VIEWS  OF  OTHER 
LAW  WRITERS.  — §31.  THE  SUBJECT  CONTINUED.— 
§32.  CONCLUSION. 

I.  ON  THE  ART  OF  ADMINISTERING  JUSTICE 2 
§  1.  Codes  and  Judicial  Functions.  When  on  Jan- 
uary 1,  1900,  throughout  those  parts  of  Germany  where 
the  Roman  civil  law  had  prevailed,  the  Roman  law 
ceased  to  be  in  force,  and  the  controversies  raging  around 
it  disappeared  together  with  the  local  statutes  supple- 
menting it,*which  frequently  were  just  as  hard  to  inter- 
pret, a  good  many  people  may  have  imagined  that  a  new 
epoch  had  begun,  an  epoch  in  which  a  code,  easy  to  use, 
would  facilitate  the  decision  of  law  cases  which  practical 
life  produces  in  ever  novel  forms,  by  means  of  a  few 

«  This  discussion  will  be  confined  to  the  administration  of  law  in  civil 
cases. 


§1]  BOOK-LORE  AND  JUDGES  87 

easily  framed  pronouncements  intelligible  to  everybody. 
That  hope  has  not  been  fulfilled.  The  number  of  contro- 
versies is  legion.  The  necessary  tools  of  the  practitioner 
include  thick  commentaries  and  a  flood  of  published 
decisions  by  the  highest  courts  that  is  rising  in  an  actually 
menacing  manner.3 

This  overproduction  of  book-lore  can  hardly  be  con- 
sidered a  blessing.  What  is  needed  for  the  administra- 
tion of  the  law  is  not  a  dead  learning,  nor  a  cult  of  the 

uletter,  nor  excessive  reverence  for  precedent.  A  reason- 
able administration  of  justice  depends  on  paying  due 
regard  to  actual  life  and  its  circumstances.  It  requires  a 

^nowledge  of  the  ideas  present  in  the  minds  of  litigants, 
presupposes  a  deep  study  of  the  practical  ends  pursued  by 
individuals  in  their  struggles  for  existence.  It  demands 

j^knowledge  of  the  manner  of  expression  and  the 
educational  status  of  the  average  person,  as  well  as  of  the 
manner  in  which  he  is  likely  to  conceive  right  and  wrong. 

^Finally  it  requires  some  knowledge  of  the  standard  by 
which  individuals  measure  themselves  and  others  in  their 
business  and  legal  relations.  About  all  this  the  judge  will 
be  able  to  glean  information  and  instruction  from  com- 
mentaries and  precedents  only  in  a  limited  measure. 
He  whose  duty  it  is  to  administer  justice  must  call  to 
his  aid  the  power  of  observation  and  the  experience  of 
life  that  is  gained  by  continuous  and  open-minded 
observation.  He  should  be  conscious  that  what  he  is 

8  The  excellent  commentary  by  Staudinger  deals  with  2385  sections 
of  the  Civil  Code  and  218  sections  of  the  supplementary  act  of  intro- 
duction. The  official  edition  of  the  decisions  of  the  Imperial  Supreme 
Court  starts  its  volume  44  after  January  1,  1900,  and  up  to  this  time 
has  added  already  26  additional  volumes.  Counting  450  pages  to  an 
average  volume,  there  are  11,700  pages  which,  according  to  present  day 
notions,  every  judge  must  have  read.  Add  to  these  the  collections  of 
decisions  in  JW,  in  "Recht,"  and  in  many  other  periodicals.  The  well- 
known  commentaries  of  Gaupp-Stein  on  the  Code  of  Civil  Procedure  and 
Staub-Stranz  on  the  Commercial  Code  each  have  about  2,040  pages 
in  their  latest  editions. 


88       GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

called  upon  to  oppose  to  the  will  of  individuals  as  the 
will  of  the  State,  i.e.  the  will  of  the  community,  must  in 
no  case  be  in  reality  opposed  to  the  true  will  of  such 
community.4  Let  him  bear  in  mind  that  each  legal  con- 
troversy is  caused,  as  one  might  say,  by  a  morbid  con- 
dition. Before  his  tribunal  appears  a  section  of  human 
life  that  has  been  thrown  into  disorder,  and  it  is  his  busi- 
ness to  rearrange  it.  Then,  like  the  truly  wise  physician, 
he  will  first  of  all  try  to  find  how  he  may  help  those  who 
turn  to  him  in  confidence.5 

•  i^The  judge  ought  to  perform  his  duty  not  with  his  head 
merely  but  also  with  his  heart ;  he  must  exercise  his  im- 
agination to  place  himself  vividly  into  the  circumstances 
of  the  parties  appearing  in  the  various  tragedies  and  come- 
dies on  his  docket,  so  that  he  may  realize  how  they  felt 
when  they  acted  as  they  did,  what  ends  they  may  have 
pursued,  and  whether  such  pursuit  can  be  held  blameless 
when  considered  with  a  view  to  the  general  welfare. 

•  Further,  he  must  make  clear  in  his  mind  what  the  parties, 
from  their  subjective  points  of  view,  expect  from  the 
government  that  is  to  give  them  what  is  their  due,  and 
whether  such  expectations  are  in  accord  with  a  true 
sense   of  justice   or   based   on   unfounded   assumptions 
regarding  the  nature  of  their  rights.     And  finally,  the 

IJtfdge  is  to  point  out  the  true  direction  of  the  sense  of 
justice  implanted  in  all  of  us,  like  a  magnetic  needle,  so 
to  speak.  True  justice  cannot  be  found  in  cold,  logical 
ratiocinations,  nor  by  a  wisdom  garnered  in  dusty  books. 
If  it  is  properly  to  be  administered,  the  heart  will  have 
to  be  allowed  a  voice  by  assisting  critical  reason  and  con- 
trolling the  inferences  logic  would  draw  from  the  statute, 

«  Jhering,  "Law  as  a  Means  to  an  End,"  page  220  [in  this  Series]. 

•  The  judge,  in  pronouncing  a  judgment,  really  performs  an  act. 
In  all  practical  relations  it  is  not  sufficient  to  know  what  the 
facts  are,  but  it  is  necessary  to  do  something  regarding  them.  (Jhering, 
"Zweck  im  Recht,"  vol.  2,  p.  47.) 


§1]  BOOK-LORE  AND  JUDGES  89 

mitigating  their  harshness  as  far  as  that  can  be  recon- 
ciled with  the  law  as  it  is  written,  and  harmonizing 
them  with  the  demands  of  actual  life.  Administration  of 
justice  is  "ars  aequi  et  boni,"  as  was  said  by  the  Romans 
more  than  eighteen  hundred  years  ago.  The  judge  who 
would  think  and  act  rightly  in  his  function  of  rendering 
judgment  must  be  able,  as  far  as  inelastic  provisions  of 
the  statute  do  not  prevent  him,  to  discover  in  the  law 
and  make  effective  that  which  he  himself,  if  placed  in  the 
situation  of  the  parties,  would  feel  to  be  right  and  just. 

§2.  Statutes  and  Justice.  Theremay  be  an  objection  to 
this  effect:  we  have  no  use  for  such  doctrine.  It  means  to 
put  subjective  feeling  above  law.  Arbitrary  judgment 
would  rule  in  place  of  law,  and  that  is  precisely  what  a  liti- 
gant will  tolerate  least  of  all.  If  such  execrable  principles 
were  followed,  insupportable  uncertainty  of  law  would  be 
the  result.  Perhaps  somebody  might  refer  to  Gustav 
Riimelin,  who  says  in  an  address  on  the  idea  of  justice:6 

"No  doubt  the  ideal  of  justice  would  be  to  consider 
and  decide  each  case  requiring  the  intervention  of  public 
authority  by  itself,  in  the  light  of  all  the  surrounding 
special  circumstances  and  characteristics.  For  each 
case  is  of  a  specific,  individual  nature.  Not  one  is  pre- 
cisely like  some  other  and  therefore  capable  of  being 
subsumed  under  some  previously  established  rule  with 
infallible  certainty.  If  we  were  to  imagine  to  ourselves 
a  divine  administration  of  justice,  we  should  not  doubt 
that  such  would  be  its  procedure.  It  would  not  need  a 
collection  of  general  rules.  But,"-  -  Riimelin  continues, — 
"this  ideal  is  entirely  unattainable  for  human  purposes, 
and  therefore  is  to  be  rejected." 

Nor  do  I  propose  to  claim  for  the  German  j  udge  any  such 
godlike  authority.  For  one  thing,  one  may  rest  assured 
that  the  2385  sections  of  the  Civil  Code,  together  with  1048 

«  "Reden  und  Aufsatze,"  new  series  (1881),  p.  197. 


90        GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

of  the  Code  of  Civil  Procedure  and  905  of  the  Commercial 
Code,  and  thousands  upon  thousands  of  sections  in  other 
statutes,  are  a  sufficient  barrier  against  the  arbitrariness 
of  German  judges  in  all  ordinary  cases  at  least! 

Yet,  it  would  seem  to  appear  with  sufficiency  from 
the  textbooks,  commentaries,  and  collections  of  deci- 
sions, that  notwithstanding  the  plenitude  of  positive 
statutes,  the  current  of  ever-changing  life  produces  day  by 
Ittay  cases  that  do  not  permit  a  direct  or  unquestionable 
application  of  a  statutory  provision.  For  it  is  the 
exclusive  purpose  of  all  these  books,  by  the  side  of  the 
positive  statutes,  to  formulate  additional  maxims  and 
principles  not  to  be  found  in  the  words  of  any  statute, 
to  deduce  from  the  written  text  new  rules,  supple- 
mentary rules,  exceptions,  and  thus  to  guide  us  to  that 
correct,  practical  administration  of  justice  which  is  the 
goal  of  all  legal  science.  Whether  the  law  that  has  thus 
been  derived  from  positive  statutes  by  means  of  inter- 
pretation and  maxims  or  principles  believed  to  be  true, 
and  maintained  as  such,  is  really  calculated  to  promote 
and  increase  the  rule  of  justice,  must  be  tested  in  the  last 
analysis  by  such  administration  of  justice. 

§  3.  The  Demand  for  Reforms.  Because  the  members 
of  the  German  judiciary  cherish  a  tradition  of  great 
reverence  for  commentaries  and  collections  of  decisions, 
they  have  on  the  whole  rested  in  the  quiet  belief  that 
everything  is  in  the  best  of  order ;  that  under  the  guid- 
ance of  the  new  code,  legal  science  and  the  art  of  inter- 
pretation are  flourishing  and  promise  to  do  so  in  even 
greater  measure  in  the  future.  Now  and  then,  some  prac- 
titioner may  have  been  troubled  by  a  scruple  whether 
one  could  speak  of  a  healthy  condition  when  questions 
simple  on  their  face,  such  as  the  daily  grist  of  the  courts 
produces  them,  cannot  be  solved  except  by  a  vast  ex- 
penditure of  reasoning  and  analysis  of  prior  decisions  and 


§3]  THE  DEMAND  FOR  REFORMS  91 

the  contradictory  opinions  of  authors.  We  may  use  as 
illustrations  questions  arising  with  regard  to  the  nature  of 
actions  for  rescission  of  contracts  of  sale  and  the  neces- 
sity of  specific  demand  for  acceptance  of  the  goods  by  the 
vendor.  In  regard  to  the  latter  point,  even  Staub,  who 
is  ordinarily  very  practical,  advocated  a  formal  demand,7 
but  subsequently8  the  Imperial  Supreme  Court  decided 
in  the  way  which  alone  has  practical  sense,  just  as  it  has 
done  regarding  the  true  nature  of  the  action  for  rescis- 
sion.9 However,  when  we  try  to  see  what  the  result  of 
the  contest  raging  about  these  questions  really  amounts 
to,  all  we  can  say  after  we  have  drawn  the  kernel  out  of 
the  chestnut  is  this:  to  require,  in  cases  of  rescission, 
that  the  fact  of  rescission  must  first  be  established  in  the 
judgment  before  the  legal  consequences  of  such  an  act 
can  be  enforced  must  needs  force  us  into  useless,  nugatory 
and  therefore  objectionable  circumlocution.  The  second 
controversy  would  never  have  arisen  at  all  if  the  question 
had  been  asked  whether  there  could  be  any  sense  in  com- 
pelling an  honest  vendor,  whose  vendee  has  definitely 
refused  to  accept  the  goods,  to  make  a  further  demand 
and  thereby  expose  himself  to  being  snubbed.  For 
according  to  the  feeling  among  business  men  the  vendee 
might  well  object  to  having  his  definite  declaration  of 
intention  treated  as  if  he  had  not  meant  it. 

As  a  matter  of  fact,  the  reasons  given  in  the  Supreme 
Court  decisions  on  these  two  questions  amount  to  nothing 
more  than  a  statement  of  the  points  given  above.10  At 

'  "Kommentar  zum  HGB,"  6th  and  7th  ed.,  notes  75  and  92  in  the 
excursus  regarding  section  374. 

8  RGZ  51,  p.  350,  and  passim. 

•  RGZ  58,  p.  424. 

'•  RGZ  51,  p.  350,  puts  the  matter  very  pertinently  by  saying  that 
"we  cannot  assume  that  in  legal  intercourse  purposeless  and  superfluous 
acts  are  required."  —  In  the  same  volume  it  is  held  that  a  clerk  who  has 
been  discharged  without  cause  need  not  expressly  declare  his  willingness 
to  serve.  (Romer,  in  DJZ  (1903),  p.  340.) 


92       GM ELI N:  SOCIOLOGICAL  METHOD  [CH.III 

least  these  two  points  are  the  only  ones  of  practical 
importance.  All  the  rest  is  very  learned,  but  superfluous, 
all  the  more  superfluous  because  nobody  can  doubt 
that  from  all  these  so-called  scientific  reasons  the  oppo- 
site conclusion  might  have  been  drawn  quite  as  well. 

As  we  said  above,  for  some  time  it  has  happened  now 
and  then  that  some  judge  began  to  doubt,  in  view  of 
this  and  other  cases,  whether  we  had  really  touched  such 
glorious  heights  of  perfection.  Then  a  champion  arose 
to  gather  up  the  scattered  doubts,  to  condense  and  inten- 
sify them,  and  in  eloquent  language  to  announce  as  the 
result  of  acute  critical  analysis  something  like  the 
following : 

"There  is  something  wrong  about  our  entire  system. 
The  judgments  rendered  by  our  courts  are  founded  on  a 
method  of  scholastic  formalism  which,  in  the  last  analysis, 
is  caused  by  an  erroneous  method  of  training  in  school 
and  university.  The  true  kernel  of  the  judicial  function, 
which  should  consist  of  a  balancing  of  the  interests  of  the 
contending  parties — in  other  words,  the  sociological  fac- 
tor—  is  lost  sight  of  or  at  best  admitted  in  a  shamefaced 
manner  as  a  trifling  auxiliary.  We  must  see  to  it  that 
<fche  judicial  bench  shall  foster  a  sociological  development 
of  law,  so  that  the  opposing  interests  of  parties  may  be 
reconciled  according  as  one  or  the  other  interest  has  the 
better  right  on  its  side.  That  is  the  only  manner  of 
administering  justice  which  is  promotive  of  good  and  in 
accordance  with  the  needs  of  the  litigating  public.  If 
courts  proceeded  in  such  a  way,  we  could  again  hope 
that  the  dry  branch  of  our  administration  of  law  might 
flourish  once  more  and  we  might  hear  nothing  further 
of  the  reputation  of  judges  for  lacking  a  knowledge  of 
actual  life." 

§  4.  The  Writings  of  Ernst  Fuchs.  This  is,  in  a 
summary  way,  the  general  trend  of  those  opinions  which 


§4]  THE  WRITINGS  OF  FUCHS  93 

;xErnst  Fuchs,  in  various  books  and  articles,11  has  pub- 
lished and  defended, not  without  encountering  vehement 
contradiction  and  opposition. 

If  one  starts  with  an  inclination  toward  a  conception 
of  the  judicial  function  such  as  was  outlined  above,  he 
will  not  find  it  difficult  to  approve  of  the  new  doctrine. 
In  so  far  as  existing  conditions  are  assailed  thereby,  this 
doctrine  will  of  course  first  of  all  have  to  prove  its  right 
to  exist  by  showing  that  the  defects  it  charges  against  the 
administration  of  justice  at  the  present  day  actually 
exist  and  are  caused  by  judicial  methods.  Now  it  is 
fairly  easy  to  test  the  correctness  of  the  propositions 
maintained  by  Fuchs,  because  they  are  supported  by  a 
considerable  number  of  criticisms  of  recent  decisions  by 
the  Imperial  Supreme  Court,  criticisms  which,  we  must 
admit,  are  decidedly  trenchant  and  bitter.  We  cannot 
follow  these  criticisms  into  every  detail  and  thus,  as  one 
might  say,  effect  a  revision  by  a  tribunal  of  the  fifth 
instance.  We  may,  however,  warmly  recommend  to 
every  judge  their  serious  study.  In  this  place  we  can 
give  but  a  few  observations  and  show  by  a  few  illustra- 
tions how  much  of  these  criticisms  will  stand  the  test  of 
an  independent  examination.12 

§  5.  Criticism  of  Supreme  Court  Decisions.  As  far  as 
the  outward  form  of  decisions  by  the  Imperial  Supreme 
Court  is  concerned,  the  suggestion  has  often  been  made 
that  long-winded  periods  and  clumsy  expressions  ought 

>l  "Schreibjustiz  und  Richterkonigtum";  "Recht  und  Wahrheit  in 
unserer  heutigen  Justiz."  See  also:  "Holdheim's  Monatsschrift,"  1908, 
p.  161  et  seq.,  1909,  p.  29  (now  inserted  in  the  work  "Gemeinschadlich- 
keit  der  konstruktiven  Jurisprudenz,"  (vide  infra);  "Wiirttembergische 
Zeitschrift  fur  Recht  und  Verwaltung,"  1909,  p.  1  et  seq. 

1J  It  seems  at  bottom  self-evident  that  criticisms  of  this  kind  must  be 
directed  principally  against  the  highest  court  in  Germany.  As  things 
are,  the  decisions  in  the  lower  courts  are  to  a  great  extent  dependent  on 
those  of  the  Imperial  Court.  Nobody  will  deny,  therefore,  that  consist- 
ent errors,  if  they  can  be  proven  in  the  decisions  of  the  Imperial  Supreme 
Court ,  will  also  be  found  in  those  of  the  lower  courts. 


94       GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

to  be  avoided.  Even  recently,  however,  one  may  find 
in  a  Supreme  Court  case  13  a  single  sentence  contain- 
ing 121  words.  To  insert  into  a  decision  long  cita- 
tions does  lighten  the  labors  of  future  legal  authors, 
but  strictly  such  quotations  are  not  a  part  of  the  business 
of  the  court,  which  should  keep  in  mind  first  of  all  the 
convenience  of  the  litigants.  The  dignity  of  courts 
requires  that  their  opinions,  which  in  effect  are  the  com- 
mands of  the  State,  shall  be  pronounced  with  decision 
and  not  bear  on  their  face  the  vestiges  of  painful  mental 
labor.  Before  what  the  court  has  to  say  is  given  publicity, 
all  attacks  of  the  "maladie  de  doute"  must  have  been 
cured.  To  show  to  the  parties  that  the  court  had  to 
struggle  with  doubts  had  better  be  avoided.  In  some 
cases  it  may  be  very  profitable  to  dig  into  the  history  of 
the  origin  of  the  law,  but  ordinarily  that  sort  of  toil  need 
not  be  paraded  in  public. 

In  the  field  of  private  law  a  large  part  of  the  contro- 
versies have  no  particular  scientific  interest.  The  full 
quorum  of^the  Imperial  Supreme  Court  uses  ten  printed 
pages  to  discuss  the  question  14  whether  an  action  abates 
when  a  party  dies  after  a  judgment  in  appeal  has  been 
served  upon  him,  but  before  he  has  moved  for  a  revision 
and  the  party  is  still  represented  by  the  attorney  of 
record  in  the  appellate  court.  That  might  well  have 
been  decided  and  the  reasons  stated  in  a  few  words. 
In  a  case  like  this,  as  in  many  other  cases  relating  to 
practice,  the  decisive  thing  is  not  some  scientific  reason 
but  the  convenience  of  daily  life.  Arguments  based  on 
scientific  grounds  but  losing  sight  of  this  practical 
consideration  will  have  to  be  rejected  because  they  are 
not  applicable  and  therefore  incorrect.  For  instance,15 

"  RGZ  65,  p.  318. 
»«  RGZ  68,  pp.  247-257. 

«  RGZ  16,  p.  395.  The  two  cases  next  following  have  not  been  dis- 
cussed by  Fuchs. 


§5]  EXCESSES  OF  FORMALISM  95 

the  proposition  maintained  by  the  Supreme  Court  in 
another  decision,  according  to  which  the  possession  of  a 
document  containing  material  evidence  can  be  proven 
only  by  producing  the  document,  and  not  by  witnesses, 
seems  to  me  to  have  no  practical  value,  although  the 
commentaries  go  on  upholding  it.  Why  should  I  not 
be  permitted  to  prove  by  witnesses  that  my  opponent  is 
not  telling  the  truth  when  he  swears  that  he  does  not 
have  the  document;  and  after  that  has  been  established, 
why  should  not  a  witness  be  heard  under  oath  to  tell 
what  the  document  contained?  Further,  it  might  be 
interesting  to  know  whether  any  court  ever  required  a 
party  who  at  the  first  oral  hearing  refused  to  be  sworn, 
to  take  the  oath  afterward,  merely  in  order  that  such 
party,  who  according  to  his  own  declaration  cannot  take 
the  oath,  may  have  an  opportunity  to  make  up  his  mind 
whether  he  really  cannot  take  that  oath?16  And  what, 
finally,  is  the  real,  practical  substance  of  that  eminently 
"scientific"  question,  the  "contingent  counterclaim," 
except  the  recognition  of  the  utter  absurdity  of  deciding 
an  action  in  such  a  manner  as  to  make  a  new  lawsuit 
the  unavoidable  consequence? 17 

The  entire  subject  of  service  of  papers,  as  contained  in 
the  Code  of  Civil  Procedure,  is  distinguished  from  the 
corresponding  provisions  everywhere  else  (as,  for  instance, 
in  the  acts  regarding  the  industrial  and  commercial 
courts)  by  absurdities  and  senseless  formalism,  causing 
the  loss  of  many  a  good  case  at  the  expense  of  parties. 
Decisions  on  such  points  have  no  real  scientific  interest ; 
they  are  a  treadmill  toil  which  has  been  imposed  on  the 
courts  by  defective  legislation. 

»«  According  to  Gaupp-Stein,  note  I,  2,  to  sect.  464,  the  provisions  of 
sect.  464,  par.  2,  of  the  Civil  Code  apply  only  where  the  court  has 
imposed  the  oath  upon  the  party. 

"  This  agrees  with  Gaupp-Stein,  note  2,  to  §  300  ZPO. 


96       GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

§  6.  More  Decisions  Criticized.  In  the  field  of  private 
substantive  law  we  may  furnish  the  following  illustra- 
tions : 

In  another  case,18  we  find  a  decision  that  the  Civil 
Code 19  cannot  be  invoked  in  favor  of  the  family,  the  father 
of  which  was  drowned  by  falling  into  an  insufficiently 
guarded  stream  which  ran  through  a  village.  On  this 
decision  one  may  comment  to  the  effect  that  the  number 
of  beneficiaries  in  contemplation  ought  not  indeed  to  be 
extended  too  far,  for  if  that  were  done  perhaps  even  the 
State  might  sue  for  damages  because  it  lost  a  citizen. 
Yet  I  am  unable  to  see  what  there  is  to  prevent  the 
court  from  holding  that  those  members  of  the  family 
who  were  entitled  to  support  by  the  deceased  were  entitled 
to  the  benefit  of  the  code  provision,  when  the  penal  provi- 
sions 20  of  the  concurrent  Penal  Code  were  enacted  for  that 
purpose.  Surely  the  highest  court  in  the  German  Empire 
may  claim  authority  sufficient  to  declare  this  to  be  law  on 
its  own  responsibility.  That  would  be  a  great  deal  more 
satisfactory  than  its  hiding  behind  the  narrowest  con- 
struction of  the  letter  of  the  statute. 

The  same  criticism  is  true  of  the  decision  found  in 
still  another  case.21  There  the  mother  of  a  girl  who  had, 
at  her  own  request,  been  killed  by  her  lover  and  been 
buried  in  the  "suicide  corner"  of  the  cemetery  at  Diissel- 
dorf,  demanded  reimbursement  out  of  the  estate  of  the 
lover  for  the  cost  of  transferring  the  girl's  body  to 
Berlin.  The  court  denied  the  claim.  Here  is  an  issue 
between  the  heart  of  a  mother  and  the  purse  of  a  mur- 
derer. Was  it  necessary  to  save  the  latter? 

Absolutely  inhuman!  —  this  is  an  expression  I  used 
regarding  this  case  before  I  knew  of  the  identical 

is  RGZ  64,  p.  344. 
i»  BOB  823,  par.  2. 
"  Sec.  367,  subs.  12. 
»  RGZ  06,  p.  305. 


§6]  EXCESSES  OF  FORMALISM  97 

criticism  by  Fuchs 22  —  it  seems  to  me  absolutely  inhuman, 
where  the  judge,  called  in  to  draw  a  will  and  rinding  the 
testatrix  in  a  paralyzed  condition,  is  required,  in  order 
to  comply  with  the  letter  of  the  statute,  to  have  the 
dying  person  make  an  express  declaration  that  she  is 
unable  to  write.23 

§  7.  A  False  Method.  Enough  of  this!24  Let  us  ask: 
What  profiteth,  in  such  cases,  an  intimate  acquaintance 
with  all  the  commentaries,  monographs,  and  annotations 
of  the  statutes?  Are  not  these  all  very  simple  questions 
which,  as  it  happens,  the  statutes  have  not  expressly 
provided  for,  but  for  which  anybody  can  find  the  answer 
in  his  own  good  sense  in  order  to  realize  "the  law  that  is 
born  with  us,"  which  we  are  sorry  to  say,  in  the  cases 
cited,  is  not  the  law  as  laid  down  by  the  Imperial  Supreme 
Court? 

And  unfortunately  it  is  true  that  these  three  "anti- 
sociological"  decisions  may  be  the  worst  but  are  by  no 
means  the  only  ones  that  give  evidence  of  the  existence 
of  a  false  system,  a  formalistic,  narrow-minded  method 
of  interpretation,  which  is  satisfied  when  the  letter  of  the 
law  has  been  applied  to  cases  for  which  according  to 
general  human  feeling  it  is  not  intended.  Fuchs  is  right 
when  he  says  that  again  and  again  we  meet  with  judicial 
decisions  that  are  far  removed  from  that  which  a  mind 
not  sophisticated  by  scholastic  argumentation  would 
deem  just  and  proper. 

If  the  method  in  which  we,  who  have  grown  up  under 
a  formalistic  training,  have  learned  to  find  the  only 
salvation,  and  regarding  which  we  are  apt  to  forget 

»»  "Holdheim's  Monatsschrift,"  1909,  p.  52,  col.  1. 

«  RGZ  69,  p.  79. 

»«  In  passing  I  wish  to  state  that  I  substantially  agree  with  the 
criticisms  expressed  by  Fuchs  ("Recht  und  Wahrheit"  pp.  25-88)  rela- 
tive, among  others,  to  the  following  decisions:  JW  1907,  p.  301,  no.  3; 
RGZ  65,  no.  16;  66,  nos.  14.  50.  62,  67. 


98       GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

that  by  logic  we  can  guarantee  the  formal  correctness 
of  procedure  but  never  the  correctness  of  the  results25  26 — 
if  that  method  leads  to  such  unfortunate  results,  why, 
then,  something  else  must  be  substituted  for  it.  And 
would  it  really  be  arrogant  and  worthy  of  condemnation 
if  a  German  judge  should  remember  his  sense  of  justice 
and  emphasize  —  even  in  express  words  —  what  he 
I  believes  to  be  just  and  equitable  in  the  case  to  be  decided, 
and  then  proceed  to  show  that  what  he  has  thus  found 
Ito  be  just  is  really  in  harmony  with  the  established  law? 
For  the  law  has  in  its  favor  the  presumption  of  being 
reasonable,27  and  according  to  Thol  the  statute  maybe 
more  intelligent  than  the  legislator. 

§  8.  The  Better  Method.  With  reference  to  the  letter 
of  the  statute,  the  law  also  should  be  interpreted  in  the 
way  in  which,  according  to  the  Civil  Code,28  private 
declarations  are  to  be  interpreted.  Where  we  are  dealing 
with  principles  which  have  themselves  been  produced 
by  scientific  deduction  from  the  statutes,  we  should 
never  forget  that  such  principles  are  not  dogmas.  The 
matter  was  recently  put  very  aptly  by  Max  Riimelin.29 
He  says:  "We  shall  incline  easiest  toward  declining 
an  inference  from  the  mere  letter  in  those  cases  where 
the  statute  itself,  by  provisions  regarding  other  interests 
to  be  considered,  shows  that  our  inference  is  wrong; 
in  such  cases  we  are  still  within  the  field  of  textual 
interpretation.  However,  we  ought  not  to  stop  there. 
Whenever  important  considerations  demand  it,  we  must 

«  Sigwart,  "Logik,"  vol.  1,  sect.  2. 

«  The  most  frequent  error  involved  in  this  method  is  that  we  operate 
with  the  "argumentum  a  contrario"  where  we  should  draw  a  conclusion 
by  analogy,  or  the  opposite,  as  is  shown  by  Fuchs  in  a  great  many 
examples. 

27  Wach,  "Handbuch  des  Zivilprozesses,"  vol.  l.page  258. 

«  BGB,  §  133. 

29  In  his  very  remarkable  academic  address  of  November,  1908,  on 
"Das  neue  schweizerische  Zivilgesetzbuch  und  seine  Bedeutung  fur  uns." 
(Tubingen,  1908,  Mohr,  p.  31.) 


§8]  A  BETTER  METHOD  NEEDED  99 

fall  back  on  the  presumption  that  the  legislator  meant  to 
be  reasonable,  and  could  not  have  intended  an  absurd 
decision.    The  more  sensitive  and  fine  a  feeling  for  justice 
is  evolved,  the  less  shall  we  be  satisfied  with  decisions  not 
evidently  right  on  the  merits.    When  the  law  has  become 
highly  developed  we  may  even    arrive  at   this  rule  of \i — 
interpretation,  that  disputes  which  had  never  been  con-  j 
templated  by  the  legislator,  especially  such  as  had  never  J 
arisen  in  practice  before  the  statute  was  made,  cannotv 
in  cases  of  doubt,  be  construed  as  covered  by  the  expres^ 
sions  of  the  text." 

I  do  not  believe  that  there  is  danger  of  impairing  the 
certainty  of  the  administration  of  the  law  by  greater 
emphasis  being  laid  on  the  sense  of  justice,  in  the  way 
advocated  here.  I  am  rather  inclined  to  believe  that 
our  administration  of  justice  will  be  rejuvenated  thereby. 
Excessive  formalism  must  go,  and  for  it  must  be  substi-;— 
tuted  a  more  natural  conception  that  will  harmonize 
with  the  actual  conditions  of  social  life,  so  as  to  insist 
consciously  upon  the  practical  needs  dictated  by  our 
sense  of  justice. 

An  alluring  task  would  be  to  discuss  the  question 
whether  the  preparation  offered  by  our  schools  may  not 
need  reforming.  However,  from  that  I  must  refrain. 
I  should  say  that  all  conversant  with  existing  conditions 
are  agreed  that  there  is  such  need,  and  they  also  agree, 
probably,  that  the  legal  profession  whose  members  are 
so  often  charged  with  being  strangers  to  real  life,  would 
be  the  greatest  gainer  from  a  reform  that  would  put 
training  for  practical  thought  and  action  in  place  of 
mere  formal  education  of  the  reasoning  faculty.  We 
should  wish  that  the  law  student  at  the  university 
might  be  enabled  to  avoid  mere  narrow  specialization  and 
could  come  into  touch  as  much  as  possible  with  other 
branches  of  knowledge. 


100      GMELIN:  SOCIOLOGICAL  METHOD   [Cn.111 

§  9.  Conclusion.  In  recapitulation,  we  may  say  this: 
There  is  good  reason  why  discussions  have  recently  arisen 
regarding  the  art  of  administering  justice.  In  part,  at 
least,  that  art  is  still  far  removed  from  the  ideal  I  pro- 
posed at  the  beginning  of  this  paper.  What  we  judges 
require  in  the  practice  of  our  daily  labors  is  not  merely 
a  logical  elaboration  of  the  legal  matters  submitted  to  us 
in  each  case,  but  an  energetic  progress  toward  the  goal 
^realizing  justice  on  the  foundations  of  positive  law. 
We  need  a  vivid  understanding  of  the  facts,30  a  sympa- 
thetic treatment  of  the  human  destinies  that  are  passing 
before  our  eyes.  We  must  strive  to  penetrate  into  the 
needs  of  the  parties  who  come  before  the  judge  as  patients 
come  before  the  physician,  so  that  we  may  not  offer 
them  the  stone  of  bald  reasoning  but  the  bread  of 
sympathetic  relief.  Let  us  break  with  the  habit  of  using 
our  decisions  to  parade  learned  disquisitions,  expressed 
in  diffuse  verbiage  incomprehensible  to  the  layman! 
Much  would  be  gained  if  the  writers  of  the  million  or  so 
opinions  accompanying  judgments  rendered  annually 
in  the  German  Empire  were  all  firmly  agreed  to  shun 
all  scholastic  subtleties,  artificial  deductions  and  forced 
constructions.  They  might  well  take  for  their  motto 
the  lines  of  Goethe: 

"Good  sense  and  honest  judgment  will 
With  little  art  expound  themselves." 

A  determination  to  follow  such  principles  will  take  the 
German  judiciary  a  good  deal  farther  than  all  the 
pretended  learning  they  can  infuse  into  their  labors. 

*>  That  is  why  the  ability  of  a  judge  shows  .  itself  nowhere  more 
plainly  than  in  the  manner  in  which  he  handles  the  facts  and  puts  ques- 
tions to  the  witnesses. 


§10]  LAW  AND  SOCIOLOGY  101 

II.    ON  THE  SOCIOLOGICAL  METHOD  IN  THE 
ADMINISTRATION  OF  JUSTICE 31 

"What  we  are  striving  for  is  that  the  courts  may  find  the  right 
judgment  on  the  merits  by  practical  sense  and  true  comprehension  of 
the  facts,  instead  of  the  correct  logical  deduction  by  the  help  of 
scholastic  subtleties."—  Ernst  Fuchs,  "Wiirttembergische  Zeitung  filr 
Rechtspflege  und  Verwaltung,"  1909,  p.  5. 

§  10.  Law  and  Sociology.  Our  first  question  shall  be: 
Are  we  justified  in  claiming  that  there  is  a  modern  ten- 
dency in  the  law,  so  markedly  distinct  by  its  character- 
istics from  what  has  been  customary,  that  we  are  able 
and  compelled  to  attribute  to  it  independent  importance 
and  a  specific  appellation? 

As  a  matter  of  fact  I  do  believe  that  the  social  ideas 
of  our  time,  and  the  new  science  of  sociology  built  up 
on  them,  have  made  their  way  even  into  that  most  con- 
servative of  all  provinces  of  intellectual  activity,  the  law. 
At  the  present  time,  the  method  of  legal  science  is,  on  the 
whole,  that  of  the  system-builder,  and  the  method  of 
administering  the  law  is  that  of  enforcing  a  statute,  if 
I  may  use  that  expression.  All  effort  is  directed  toward 
"bringing  the  case  within  the  statute,"  in  accordance 
with  the  authority  of  the  State.  In  keeping  with  this 
method,  we  are  tracking  the  expressed  intention  of  the 
legislator  into  its  most  remote  hiding-places.32  And 
when  that  has  been  done  we  apply,  by  a  chain  of  deduc- 
tions, the  rules  that  may  be  plainly  in  existence,  or  if 

31  I  received  the  impetus  to  write  this  essay  from  a  request  by  the 
editor  of  the  "Wiirttembergische  Zeitschrift  fiir  Rechtspflege  und 
Verwaltung,"  to  review  the  book  by  Ernst  Fuchs,  entitled  "Die  Gemein- 
gefahrlichkeit  der  konstruktiven  Jurisprudenz"  (Karlsruhe,  1909;  Braun). 
From  this  review  (in  the  year  1910,  pp.  1  et  seq.)  the  present  paper  has 
been  evolved.  The  above  book  will  hereafter  be  cited  as  "G,"  followed 
by  the  page  numbers.  The  work  by  the  same  author,  "Recht  und  Wahr- 
heit  in  der  heutigen  Justiz"  (Berlin,  1908,  Heyman),  will  be  cited  as 
"R&W,"  followed  by  the  page  numbers. 

«  "All  that  is  needed  now  is  to  put  the  draftsmen  on  oath  to  testify 
what  they  had  in  mind,  or  what  they  would  have  thought  about  a  par- 
ticular case  if  they  had  thought  of  it  at  all."  ("G"  11.) 


102     GM ELI N:  SOCIOLOGICAL  METHOD    [CH.III 

necessary  discovered  in  the  dialectic  manner,  to  the  facts 
of  the  case,  with  the  implied  assumption  that  the  State 
requires  the  application  of  the  statute  equally  to  every 
state  of  facts  that  can  possibly  arise. 

Regarding  these  principles  we  must  say   generally, 
first  of  all,  that  they  cannot  but  lead  to  a  mere  formalistic 
administration  of  the  law,  so  that  we  must  needs  look 
for  some  other  source  from  which  to  derive  the  means  of 
supplementing  and  vivifying  our  labors.    Such  a  source 
we  may  find,  agreeably  to  certain  modern  conceptions, 
in  the  recognition  that  the  kernel  of  all  legal  contentions 
is  a  dispute  regarding  certain  interests  which  the  law 
protects,  be  it  interests  of  a  pecuniary,  be  it  such  of  an 
ideal  nature.    Accordingly,  the  task  of  judicial  determin- 
jation  should  be  to  understand  the  merits  of  such  conflicts 
•  of  interests,  to  find  out  their  essential  nature,  and  to  recon- 
)cile  them  by  balancing  them  against  each  other  in  the 
manner  of  an  unbiased  arbitrator  who  stands  above  the 
parties  and  bears  in  mind  both  the  advantage  of  the 
contending  individuals  and  the  general  welfare.     Indi- 
vidual advantage,  because  that  is  what  the  parties  are 
seeking  to  protect;    the  general  welfare,  because  that 
enters  into  the  problem  not  merely  on  account  of  the 
interest  the  public  has  in  the  certainty  of  justice,  i.e.  in 
the  equal  adjudication  of  equal  cases,  but  also  because 
the  public  is  interested  in  having  each  case  determined 
justly.    For  each  case  must  be  considered  the  type  of  a 
series  of  similar  cases.     The  method  here  outlined,  b> 
which  it  is  sought  to  substitute  for  the  primary  import 
ance  of  logical  concepts  the  importance  of  a  balancing 
of  real  interests,  we  may  call  the  sociological  method 
Sociology,  to  be  sure,  is  a  name  given  to  a  science  which 
attempts  to  investigate  the  laws  by  which  society  exists 
and  the  various  social  groups  are  related  to  each  other. 
Yet  we  need  not  hesitate  to  apply  the  name  to  a  scientific 


§10]  LAW  AND  SOCIOLOGY  103 

method  which  finds  its  models  in  the  science  of  sociology, 
and  which,  in  the  field  of  private  law,  deals  with  the 
investigation  of  contending  interests.  For  are  not  these, 
to  a  great  extent, the  interests  of  struggling  social  groups?33 
The  sociological  science  of  private  law,  then,  would 
be  that  science  which  deals  with  those  legal  interests 
falling  under  the  domain  of  private  law,  and  with  the 
correlative  values  of  such  interests.  Sociological  admin- 
istration of  justice  wrould  be  that  manner  of  administering 
the  law  which,  in  pursuance  of  the  above  idea,  lays  the 
greatest  stress  in  adjudicating  cases  on  the  importance  of 
the  real  interests  involved,  and  tries  to  arrive  at  the 
correct  decision  from  this  point  of  view.  It  does  not 
follow  from  this,  however,  either  that  the  positive 
statute  is  to  be  disregarded  or  that  systematic  legal 
science,  which  is  well  pictured  as  the  stout  backbone  of 
the  law,  need  be  thrown  aside.  Yet  if  it  is  true  that  in 
consequence  of  the  fact  that  the  sociological  method 
ascribes  greater  importance  to  the  real  interests  involved 
in  each  separate  case,  and  aims  primarily  at  a  decision  on 
the  basis  of  the  real  merits,  it  is  likely  that  the  results  of 
adjudication,  taken  as  a  whole,  will  show  a  different 
aspect.  The  ideal  method  of  administering  justice,  as 
has  been  aptly  remarked  by  Sinzheimer,34  will  at  last  be 
attained  by  a  mutual  supplementation  and  interpenetra- 
tion  of  systematic  legal  science  and  the  fundamental 
ideas  of  sociology.  In  doing  so  sociology  needs  syste- 
matic science,  which  prepares  the  proper  juridical  form; 
but  on  the  other  hand  we  must  acknowledge  that  pure 
systematic  jurisprudence,  without  the  assistance  of 
sociological  principles,  does  not  suffice  to  enlighten  us 

'»  Employers  and  employed,  producers  and  consumers  (or  vendors 
and  purchasers) ,  lessors  and  lessees,  those  seeking  employment  and  the 
agents  who  try  to  procure"  it,  and  so  forth. 

««  "Die  soziologische  Methode  in  der  Privatrechtswissenschaft," 
Munich,  1909,  Rieger. 


104       GMELIN:  SOCIOLOGICAL  METHOD  [CH.  Ill 

regarding  the  actual  life  which  is  the  subject-matter  of 
legal  activities.  For  that  reason  mere  systematic 
jurisprudence  by  itself  should  no  longer  be  recognized 
as  a  proper  basis  for  the  administration  of  justice. 

§11.  Mere  Logical  Deduction  not  a  Sufficient  Method. 
We  shall  have  to  admit  without  qualification  that  in  the 
past  also  consideration  of  the  real  merits  of  a  cause  and  a 
balancing  of  material  as  well  as  legal  interests  has  not  been 
altogether  neglected  either  by  legal  science  or  legal  prac- 
tice. Yet  a  more  conscious  attempt  is  now  being  made 
to  gain  for  this  idea  a  recognition  to  which  it  is  entitled 
and  which,  as  its  champions  assume,  has  not  heretofore 
been  given  to  it  in  proportion  to  its  importance.  It  is 
no  longer  deemed  sufficient  merely  to  control  and ,  if  neces- 
sary, rectify  the  result  gained  in  the  way  of  logical 
deduction  from  legal  concepts,  by  considering  the  needs  of 
the  subject-matter  and  the  reasonableness  of  the  deci- 
sion, as  was  laid  down  by  Jhering  and  Kohler.  Instead, 
we  are  from  the  beginning  to  aim  consciously  at  a  prac- 
tically useful  and  reasonable  result. 

So  far  as  heretofore  the  sociological  idea  has  had  a 
place  in  the  administration  of  the  law  at  all,  it  has  been 
employed  clandestinely,  as  it  were.  The  notion  has 
prevailed  that  the  subjective  sense  of  justice,  which  is 
the  foundation  of  the  sociological  idea  but  which  has 
generally  been  identified  with  arbitrary  discretion,  is 
i  altogether  unfit  to  become  the  positive  basis  of  adminis- 
tering justice.  Some  have  gone  so  far  as  to  advocate  the 
total  elimination  of  this  feeling,  and  it  is  by  no  means 
improbable  that  among  the  judges  there  are  all  too 
many  unrevealed  adherents  of  this  view.  Yet  they  make 
no  objection  to  the  harmless  notion  of  "equity,"  which  at 
bottom  is  identical  with  the  sense  of  justice,  and  forget 
that  every  decision  based  on  "good  faith"  is  in  reality 
built  up  on  that  very  feeling. 


§11]  CRYPTOSOCIOLOGY  105 

A  result  of  all  this  has  been  that  the  decisions  of  the 
courts  were  frequently  enough,  as  a  matter  of  fact, 
in  harmony  with  the  substantial  justice  of  the  specific 
case,  but  the  true  reasons  were  relegated  to  some  remote 
corner  in  the  opinion,  so  that  they  appeared  like  some 
mere  embellishment  rather  than  the  basis  of  the  decision 
which  in  truth  they  were.36  This  is  the  "cryptosociologi- 
cal"  method  which  was  first  pointed  out  in  the  articles 
cited  in  the  note  to  the  title  of  this  paper,  and  can  easily 
be  traced  in  a  good  many  reported  cases.  It  consists  in 
the  judge  having  found  the  true  sociological  conclusion, 
but  afterwards  fitting  a  scholastic  chain  of  merely  formal 
logic  to  it  as  the  pretended  means  of  arriving  at  the 
result.  This  is  the  method  that  hereafter  is  to  be  aban- 
doned. 

If  we  should  succeed  in  evolving  a  true  sociological 
method  such  as  is  probably  the  ideal  of  many  practi- 
tioners,36 out  of  this  cryptospciological  one,  the  words  of 

»•  On  this  point  it  is  said  very  truly  in  "G"  39  (comp.  also  69)  that 
according  to  present  practice  the  decision  frequently  "reasons  back- 
ward." Although  here  also  "the  goal  points  the  way,"  yet  the  decision 
appears  as  if  it  were  read  out  of  the  statute  or  the  intention  of  the  legis- 
lator, while  in  reality  it  has  been  read  into  the  statute.  Thus  there  is  in 
such  decisions  a  sort  of  hypocrisy,  which  is  frequently  enough  apparently 
suspected  by  the  writer  of  the  opinion  although  he  does  not  realize  what 
the  cause  of  the  trouble  is.  This  difficulty  we  shall  have  to  get  rid  of.  — 
A  very  instructive  example  occurs  in  RGZ  69,  p.  363,  which  is  discussed 
at  length  in  "G"  65,  where  it  may  be  read.  .As  a  further  example  Fuchs 
gives  the  two  decisions  relating  to  the  purchase  of  a  brothel  (RGZ  63, 
p.  179;  69,  p.  97),  of  which  the  second  was  manifestly  different  from  the 
first  for  no  reason  except  that  the  second  judgment  was  held  to  be  more 
in  accordance  with  substantial  justice.  (See  "G"  65.) 

»«  I  may  be  permitted  to  quote  the  interesting  expressions  of  Mr. 
Stabel,  late  minister  of  justice  of  the  Grand  Duchy  of  Baden.  He  used 
to  exhort  young  judges  in  this  manner:  "When  a  case  is  to  be  decided, 
you  had  better  at  first  leave  your  Code  alone.  After  you  understand  the 
facts  thoroughly,  consider  what  would  be  right  according  to  your  com- 
mon sense  and  the  law  of  nature  and  equity;  then,  when  you  have  thor- 
oughly made  up  your  minds  on  the  case,  look  at  your  Code,  and  beholdl 
you  will  find  that  the  statute  fits  your  own  conclusion  exactly  in  almost 
all  cases,  and  that  its  intention  is  nothing  but  what  you  intend  also."  — 
It  is  entirely  true  that  by  following  that  method  an  unbiased  judge 
will  find  at  first  glance  what  is  true  and  right  in  thousands  of  cases. 


106      GMELIN :  SOCIOLOGICAL  METHOD  [ CH.  Ill 

William  Stern37  will  be  realized,  who  says,  very  aptly: 
"The  great  forward  movements  of  science  are  not  com- 
posed of  the  sudden  emergence  of  new  concepts  and 
ideas  out  of  nothingness,  but  rather  consist  in  this,  that 
familiar  experiences,  which  hitherto  were  accepted  as 
matters  of  course,  are  subjected  to  criticism,  so  that  their 
problematical  character  is  recognized  and  an  endeavor 
to  understand  them  is  put  in  the  place  of  an  acquiescence 
in  what  is  supposed  to  be  self-evident." 

Of  itself  the  sociological  method  does  not  involve  the 
question  whether  the  courts  are  bound  by  the  letter  of 
a  statute  or  may,  upon  occasion,  disregard  it  even  where 
there  is  no  ambiguity.  It  is  therefore  of  a  nature  quite 
distinct  from  the  real  school  of  "free  legal  decision," 
which  favors  such  a  mode  of  procedure.38  However,  its 
character  is  such  that  it  will  produce  a  more  independent 
attitude  of  the  judge  in  relation  to  the  letter  of  the  statute 
as  compared  with  the  systematic  conception  which  knows 
of  nothing  but  what  is  contained  in  the  words  as  they  are 
written. 

I  should  object  decidedly  to  the  term  "modernism," 
which  has  of  late  become  familiar.  This  suggests  certain 
currents  of  thought  struggling  for  greater  liberty  in 
regard  to  Catholic  ecclesiastical  dogma,  which  arouse 
considerable  opposition.  Therefore  this  term  introduces 

"  "Psychologic  der  individuellen  Differenzen,"  Leipzig  1900,  p.  7. 

»«  Fuchs  does  not  belong  to  these  extremists.  (See"G"  129;"R&W"  11.) 
For  the  rest,  I  should  incline  to  eliminate,  as  immaterial  to  the  practical 
administration  of  law,  the  theoretical  question  whether  the  courts  are 
to  be  confined  to  interpretation  of  existing  law  or  may,  on  proper  occa- 
sions, themselves  supply  a  rule  for  a  case  which  the  formulated  law 
has  not  covered.  That  discussion  will  merely  afford  opportunities  for 
renewed  scholastic  disputes  ("G"  75).  This  is  all  the  more  true  because 
the  sociological  method  goes  beyond  mere  interpretation  of  statutes  and 
requires  a  balancing  of  interests  even  where  the  statute  taken  by  itself  is 
clear  enough.  Such  is  the  case,  for  instance,  when  we  apply  concepts 
like  "contra  bonos  mores,"  constructive  fraud,  and  similar  things. 
Comp.  "G"  131,  note:  "We  are  not  dealing  .  .  .  simply  with  the 
interpretation  of  statutes,  but  with  the  very  nature  of  legal  justice." 


§11]  CRYPTOSOCIOLOGY  107 

• 

into  the  discussions  of  juridical  science  a  highly  undesir- 
able element.  We  should  avoid  carrying  the  bitterness 
with  which  the  fight  is  carried  on  in  the  ecclesiastical 
field  into  our  scientific  disputes,  or  to  exacerbate  the 
latter  without  necessity. 

§  12.  The  Sociological  Method.  The  very  important 
question  now  presents  itself  whether  the  sociological 
method  contains  germs  capable  of  such  growth  that  a 
future  scientific  harvest  may  be  expected  therefrom. 
The  new  doctrine  will  not  succeed  unless  it  can  be 
brought  into  definite,  consistent  form  and  unless  it  can  be 
proven  that  it  is  not  merely  a  negation  but  has  a  positive) 
content.  What  follows  is  intended  to  form  a  contribution 
toward  accomplishing  that  purpose. 

The  most  determined  champion  of  the  new  tendency 
is  Ernst  Fuchs,  and  therefore  he  and  his  observations 
will  first  occupy  our  attention.  Even  his  opponents,  of 
whom  he  has  not  a  few,  do  not  deny  that  Fuchs  is  gifted 
with  acute  critical  powers.39  We  may  surely  take  his 
word  for  it  when  he  says  that  he  does  not  deal  with  par- 
ticular defects  but  the  whole  system,  the  results  of  which 
"make  his  hair  stand  on  end."40  Again,  he  says  that  in 
his  researches  he  finds  "an  ocean  of  injustice"41  and 
that  his  heart  bleeds  when  he  reads  decisions  of  which  he 
cannot  approve  and  in  which  "justice  is  wrecked  upon) 
the  rock  of  scholasticism."42  Furthermore,  nothing 
can  be  found  in  his  book  to  cast  a  doubt  on  the  purity  of 
his  intentions.43  We  must  frankly  admit,  however, 

3>  "A  very  ingenious  book,"  is  what  Vierhaus  said  of  "R&W"  at  the 
Karlsruhe  meeting  of  the  German  Lawyers'  Association  (vide  "Verhand- 
lungen  des  29.  Deutschen  Juristentags,"  vol.  5,  p.  579). 

«  "G"  63. 

41  "G"  64. 

42  "G"  113,  note  7. 

43  It  speaks  particularly  well  for  him,  as  an  advocate,  that  he  insists, 
in  chapter  6,  emphatically  on  the  attorney's  duty  of  absolute  truthful- 
ness toward  the  court. 


108       GMELIN:  SOCIOLOGICAL  METHOD  [CH.  Ill 

that  his  criticisms,  which  often  drag  wholly  irrelevant 
matters  like  Nietzsche  or  questions  of  religion  into  the 
argument,  frequently  go  far  beyond  the  proper  bounds. 
Sometimes  he  is  downright  unjust,  as  for  instance  in  his 
treatment  of  the  Roman  law44  and  of  Jhering.45  It 

44  An  essay  like  "G"  is  hardly  the  place  in  which  to  dispose  of  the  tre- 
mendous issues  relative  to  the  importance  of  the  Roman  law  for  Germany, 
Even  the  most  convinced  champions  of  Germanic  law  do  not  share  the 
radical  views  of  Fuchs.  I  need  but  refer  to  the  observations  of  Cosack 
("Lehrbuch,"  5th  ed.,  vol.  1,  sect.  4)  in  which  he  distributes  light  and 
shade  with  an  even  hand.  In  my  opinion  the  Romans  will  remain  for  all 
times  the  model  of  a  people  with  a  genius  for  law.  The  development  of 
legal  institutions  in  Rome  proceeded  on  the  one  hand  without  interrup- 
tion and  on  the  other  hand  in  accordance  with  a  tenacious  conservatism 
that  would  have  been  impossible  without  a  national  character  in  which 
force  and  ethical  principle  were  mixed  in  wonderful  measure.  (Comp. 
Chamberlain,  "Foundations  of  the  Nineteenth  Century,"  vol.  1,  chap.  2.) 
Fuchs  himself  recognizes  that  the  Romans  cannot  be  held  responsible 
for  what  their  successors  did  with  Roman  law.  We  must  admit  that 
the  trouble  caused  by  present-day  scholasticism  is  due  to  the  ossification 
which  Roman  law  underwent  in  the  course  of  centuries,  and  I  welcome  a 
revolt  against  what  Fuchs  very  happily  stigmatizes  as  "pandectology." 
I  am  at  a  loss,  however,  to  see  what  is  to  be  proved  by  the  section  from 
Digest,  Tit.  de  ^Edilicio  edicto  (lib.  xxi).  The  cases  there  set  forth 
were  no  doubt  entirely  appropriate  as  a  guide  to  practical  application  at 
the  time  when  they  were  compiled.  They  are  still  very  instructive.  We 
should  be  fortunate  if  the  "ratio  legis"  were  always  exhibited  so  ingen- 
iously in  modern  statutes  as  it  is  in  the  excellent  section  1  of  this  title 
which  is  built  up  altogether  on  a  sociological  foundation.  We  must  say 
that  Fuchs' 's  onslaught  on  Roman  law  constitutes  a  sort  of  "attempt  by 
insufficient  means." 

46  By  the  side  of  many  passages  in  which  Jhering' s  views  are  frankly 
approved,  there  is  a  passage  ("G"  108)  in  which  a  sentence  from  "Lawas  a 
Means  to  an  End,"  p.  150,  taken  out  of  its  context,  furnishes  the  occasion 
for  a  vehement  attack  on  Jhering.  But  this  arrow  misses  the  mark. 
Jhering  had  a  strong  sense  of  humor  and  satire.  Of  course  he  did  not 
mean  to  advocate  conscious  fortune-hunting;  but  he  speaks  of  the 
marriage  of  rich  women  to  high  officials  as  something  which  is  often  met 
with  and  is  caused  by  social  conditions  as  they  actually  exist,  describing 
it  as  a  phenomenon  of  life  in  society  that  is  useful  to  the  State  by  permit- 
ting it  to  keep  the  salaries  of  officials  low.  Whoever  criticises  this  passage, 
intended  to  be  ironical,  as  being  brutal  has  entirely  missed  its  meaning.  — 
The  criticisms  leveled  against  "Law  as  a  Means  to  an  End"  seem  to  me 
to  be  entirely  mistaken.  Jhering,  the  man  who  was  the  first  to  examine 
and  explain  the  Roman  law,  not  merely  as  regards  its  form  and  verbal 
meaning,  but  regarding  its  real  substantial  contents;  who  (in  "Scherz 
und  Ernst")  first  held  the  mirror  up  to  scholasticism;  who  devised  the 
definition  of  law  as  "interests  protected  by  the  authority  of  the  State," 
and  who  is  celebrated  as  the  original  author  of  the  sociological  method 


§12]  THE  NEW  DOCTRINE  109 

would,  however  be  acting  unwisely  and  contrary  to  the 
precept  that  we  should  prove  all  things  and  hold  fast  to 
the  good,  if  on  account  of  the  obvious  exaggerations  in 
many  of  his  ideas  and  propositions,  and  the  intemperance 
of  his  language,  we  should  reject  also  those  sentences 
in  which  he  calls  especially  on  us  judges,  in  a  manner  well 
worth  heeding,  to  search  our  consciences  and  examine 
into  the  character  of  our  labors,  and  in  which  he  holds  up 
before  us  most  important  incitements  for  a  reforming 
movement.46 

The  glory  of  being  the  founder  of  an  entirely  new  doc- 
trine is  not  claimed  by  Fuchs.  He  rather  attributes  it 
to  Geny,  the  Frenchman,  while  Diiringer47  claims  this 
honor  for  Ehrlich.48 

§  13.  Criticism  of  Supreme  Court  Decisions.  In 
subjecting  the  present  state  of  theoretical  doctrine  and 
of  the  administration  of  justice  in  Germany  to  critical 
examination,  one  may  very  properly  begin  with  the  theory 
and  proceed  thence  to  the  practice  which  has  naturally- 
been  evolved  from  theory  and  is  consequently  dependent 
on  it.  It  is  also  possible  to  begin  with  practice  itself  and 
go  behind  it  to  the  underlying  theory'.  If  in  doing  so 
we  should  prove,  by  the  analysis  of  a  considerable  num- 
ber of  decisions,  that  they  have  all  been  rendered  accord- 
ing to  a  certain  method,  and  if  we  should  further  show 
that  this  method  is  based  on  error,  we  shall  be  able  to 

on  account  of  his  analysis  of  the  interests  the  protection  of  which  is  the 
object  of  law  —  a  man  like  that  has  written  no  works  which  one  may 
dispose  of  "by  jeers  and  ridicule."  —  Nor  will  the  attack  by  Kohler 
("Rechtsphilosophie"  [translated  in  this  Series],  p.  16)  extinguish  the 
importance  of  Jhering,  whose  work  will  be  of  the  greatest  benefit  in  pro- 
moting the  work  that  has  now  begun. 

«•  It  will  not  do,  as  I  shall  show  presently,  to  try  to  pass  it  off  with 
the  sort  of  talk  frequently  heard,  that  Fuchs  is  not  to  be  taken  seriously 
on  account  of  his  exaggerations,  or  that  a  criticism  of  his  criticisms  is 
superfluous. 

«  "Das  Recht,"  1908,  p.  259. 

48  [Both  Geny  and  Ehrlich  are  represented  in  this  volume.] 


110      GMELIN:  SOCIOLOGICAL  METHOD  [CH.  Ill 

find  that  analogous  faults  exist  in  the  theoretical  doctrine 
also,  and  may  proceed  further  to  find  the  causes  that  bring 
about  such  faults. 

Thus  we  have  at  our  disposal  a  deductive  and  an  induc- 
tive method  by  which  to  find  the  sources  of  error  that 
may  possibjy  exist.  The  last-named  method  presents  the 
difficulty  of  involving  necessarily  a  criticism  of  and 
possibly  opposition  to  the  character  of  the  decisions 
rendered  by  the  Imperial  Supreme  Court,  which  exercise 
so  great  an  influence.  For  an  analysis  of  these  decisions 
is  most  certain  to  deal  with  what  is  most  typical  in  the 
present  work  of  the  judiciary.49  On  the  other  hand,  this 
mode  of  procedure  has  the  very  considerable  advantage 
that  by  it  we  can  bring  forward  tangible  results  to  serve 
as  the  basis  of  further  scientific  deductions. 

This  method  had  never  been  adopted  to  the  same  ex- 
tent, although  it  is  of  special  interest  to  those  engaged  in 
practical  judicial  work,  until  Fuchs  employed  it  with  the 
conscious  intention  not  to  find  fault  with  particular 
errors  or  defects,  but  to  prove  on  the  firm  foundation  of 
the  material  so  collected  that  the  prevalent  method  as 
a  whole  was  erroneous.  Thus  he  gains  the  great  advan- 
tage of  compelling  everybody  who  would  claim  scientific 
standing  in  this  discussion  to  consider  whether  the 
definite  cases  examined  by  Fuchs  are  justly  criticized  or 
not.50  I  have  already  stated  in  another  place51  that  I  do 
not  see  how  one  can  avoid  admitting  frankly  the  justifi- 
cation of  many  points  raised  by  Fuchs,  and  I  need  not 
retract  anything  of  what  I  have  said. 

49  I  have  carefully  considered  whether  I  ought  not  to  refrain  from 
using  this  method  in  order  not  to  weaken  the  authority  of  the  courts, 
but  arrived  at  a  negative  conclusion. 

60  Even  the  judges  in  the  courts  below  the  Imperial  Court  ought  not  to 
refrain  from  taking  part  in  this  scientific  task. 

"  "Wiirttembergische  Zeitung  fur  Rechtspflege  und  Verwaltung," 
1908,  p.  467;  "Deutsche  Richterzeitung,"  1909,  p.  98. 


§13]  DECISIONS  CRITICIZED  111 

Yet  there  is  no  way  of  avoiding,  in  this  place,  a  de- 
tailed discussion  and  to  proceed  step  by  step  to  an 
analysis  of  the  material  submitted  by  Fuchs. 

§  14.  Analysis  of-  the  Criticisms  Made  by  Fuchs. 
First  of  all,  Fuchs  takes  exception  to  the  position  taken 
by  the  Imperial  Court  regarding  the  doctrine  of  "dom- 
mage  moral"  in  the  districts  formerly  under  the  French 
"Code  Civil,"  a  doctrine  which,  according  to  him, 
the  French  Court  of  Cassation  had  worked  out  with 
admirable  sociological  insight.82  These  exceptions  seem 
to  be  substantially  well  taken 53  as  seems  to  be  admitted 
even  by  Diiringer.54  As  to  the  next  case  discussed,55 
Fuchs  maintains  that  the  head  of  a  household  is  entitled 
to  damages  for  the  negligent  killing  of  members  of  the 
household  who  had  been  in  the  habit  of  turning  over 
to  him  the  whole  or  a  part  of  their  earnings,  although  they 
were  not  obliged  to  do  so  by  law  —  as  had  been  done 
in  the  case  in  question.  It  seems  to  me  that  in  accord- 
ance with  the  general  principles  of  liability  of  the  Code 56 
the  plaintiff  here  was  entitled  to  damages,  although  the 
letter  of  the  Code  provision  "does  not  cover  such  a  case. 
Otherwise  he  would  be  worse  off  than  if  some  profitable 
domestic  animal  belonging  to  him  had  been  killed. 
Only  the  specific  provisions  of  the  section58  relating  to 
the  duration  of  the  duty  of  paying  indemnity  and  similar 
things,  could  have  no  application.  We  cannot  admit 
that  the  wording  of  the  statute  made  the  opposite  deci- 
sion necessary.  It  would  really  seem  as  if  the  court 

"  "R&W"  pp.  25  seq. 

3  Cf.  also  "G"  pp.  53,  54. 

4  "Richter  und  Rechtsprechung,"  p.  17,  note  2,   Leipzig,  Veit,  1909. 

5  "R&W"   p.   27,   discussing    a    decision    dated    June    10,    1907,   as 
printed  in  "Juristische  Wochenblatt,"  1907,  p.  480,  No.  2. 

«  BGB  §  249. 

i  BGB  §  844,  par.  2. 

o  BGB  §  844,  par.  2. 


112      GMELIN:  SOCIOLOGICAL  METHOD  [CH.  Ill 

might  have  had  the  courage  of  giving  a  liberal  construc- 
tion to  the  statute,  if  they  had  taken  into  consideration  the 
suggestion  offered  by  Fuchs  that  otherwise  a  father,  who 
through  the  assistance  of  his  numerous  sons  and  daughters 
was  on  the  road  to  wealth,  might  have  all  of  his  children 
shot  one  by  one,  without  being  entitled  to  civil  damages.89 

In  the  next  case 60  criticized  in  the  author's  essay  a 
married  woman,  living  under  the  rule  of  joint  adminis- 
tration of  the  estates,  who  sues  with  the  consent  of  her 
husband,  is  ordered  to  prove  that  the  subject-matter 
of  the  action  relates  to  her,  and  not  to  her  husband's, 
estate.  For  that  purpose  the  cause  is  remanded  to  the 
court  below.  That  whole  matter  might  have  been 
definitely  settled  by  the  observation  of  Fuchs 61  as  fol- 
lows: "As  the  husband,  being  the  head  of  the  marital 
community,  had  consented  to  bringing  the  action,  such 
legal  subtleties  were  quite  immaterial."62 

Then  comes  a  discussion63  of  a  decision64  in  which 
it  was  held  that  the  family  of  a  man  who  had  been 

69  Having  a  deeply-rooted  conviction  that  in  the  matter  of  the 
"dommage  moral"  the  German  courts  have  unfortunately  shown  them- 
selves inferior  to  the  French,  and  that  in  the  second  case  mentioned 
above,  under  a  proper  interpretation  of  the  statute,  the  father  would  have 
received  damages  for  the  wrongful  killing  of  his  child,  Fuchs,  on  page  28, 
allows  himself  to  exclaim:  "One  is  indeed  tempted  to  call  to  arms,  but  not 
against  creative  but  against  eunuch-like  administration  of  law."  I  am 
the  last  to  fail  in  strong  reproval  of  such  a  slip,  but  also  the  last  to  believe 
that  an  author  should  be  anathemized  because  of  this  bitter  outcry, 
which  was  caused  by  a  not  unjustifiable  feeling  that  the  manner  in 
which  justice  is  administered  in  Germany  does  in  such  cases  fail  to  show  a 
proper  creative  force  ("the  highest  quality,"  "G"  187). —  In  "G"  63,  64, 
there  is  also  a  gross  contempt  of  court  deserving  reproof. 

'<>  RGZ  64,  no.  81,  p.  323. 

«  "R&W"  p.  31. 

«*  That  is  true  notwithstanding  Diiringer's  observations  in  "Recht," 
1908,  p.  264.  Compare  also  "G"  44-46,  where  Diiringer's  telltale 
expression  "What  has  sympathy  to  do  with  a  court  of  review?"  is 
properly  animadverted  upon.  The  author  there  says  that  the  compass, 
of  feeling  for  justice  must  be  pointing  in  the  wrong  direction  where  such  a 
question  can  be  answered  in  the  negative. 

«»  "R&W"  pp.  32,  37. 

»  RGZ  64,  no.  85.  p.  344. 


§14]  DECISIONS  CRITICIZED  113 

drowned  in  an  insufficiently  guarded  stream  running 
through  a  village  have  no  claim  to  damages,65  because 
the  provision  of  the  penal  code  was  a  protection  only 
for  the  deceased  himself  but  not  for  his  family.  This 
decision  is  justly  excepted  to,66  and  the  reason  given 
for  it,  that  the  death  of  its  head  did  not  necessarily  prove 
a  pecuniary  loss  to  the  family,  is  also  attacked  with  good 
arguments. 

As  to  the  next  case,67  it  is  shown 68  in  substantial 
although  not  formal  agreement  with  the  views  of  the 
Court,  how  the  reason  for  that  decision  could  have 
been  stated  very  simply.  The  decision  was  to  the  effect 
that  where  a  bailee,  being  entitled  to  deposit  the  thing 
bailed  or  the  proceeds  of  its  sale,  under  the  provisions  of 
the  controlling  sections,69  with  the  proper  officer,  sells 
the  thing  bailed  at  public  auction,  he  may,  instead  of 
depositing  the  proceeds,  pay  it  to  the  person  entitled 
thereto,  and  in  doing  so  satisfy  any  claim  of  his  own  as 
an  offset. 

The  next  question  is  whether  a  lessor  is  liable  in 
damages,  where  the  lessee  has  rescinded  the  lease  for 
the  reasons  permitted  by  the  Code.70  The  affirmative 
answer  in  this  case  does  not  seem  to  me  to  be  so  com- 
pletely justified  as  Fuchs  assumes,  in  accordance  with 
the  Imperial  Court  overruling  the  "Kammergericht." 
Precisely  from  the  sociological  standpoint,  is  it  not 
unjust  to  make  the  lessor  liable  for  all  damage  to  the  lessee 
even  where  he  is  not  at  fault  when  the  premises  become 
uninhabitable?  Is  not  the  gravamen  in  such  a  case 
the  negligence  of  the  lessor,  as  suggested  by  another 

«  Under  BGB  §  823,  par.  2;  cf.  Penal  Code  §  367,  No.  12. 

••  Comp.  my  observations  in  "Deutsche  Richterzeitung,"  1909,  p.  100. 

"  RGZ  64,  no.  90,  p.  366. 

«  "R&W"  pp.  40-46. 

«•  BGB  §§383,384. 

'«  RGZ  64,  no.  93,  p.  381;   BGB  §  542;   "R&W"  pp.  50-52. 


114      GMELIN :  SOCIOLOGICAL  METHOD  [  CH.  Ill 

section?71  Yet  the  Imperial  Court  never  touches  upon 
this  matter. 

§  15.  Further  Criticisms.  In  the  next  case,72 1  should 
be  inclined  to  agree  that  one  should  not  carry  the  logical 
deduction  from  a  concept  so  far  as  to  arrive  at  the  utterly 
unsatisfactory  conclusion  that  the  purchaser  of  a  house 
is  obliged  to  tear  it  down  because  his  grantor  had  built 
across  the  boundary  line  of  the  lot  into  the  adjoining 
lot  which  also  belonged  to  him.  It  would  seem  that  this 
is  a  case  for  applying  the  section  of  the  Code,73  which 
authorizes  the  tender  of  a  money  rent  in  such  cases. 

Next,  with  regard  to  the  "replica  compensationis"  I 
agree  that  such  a  plea  should  be  admitted.74  It  would 
seem  obvious  to  any  unprejudiced  person  that  where 
action  is  brought  for  a  part  of  a  larger  demand,  the 
defendant  cannot  object  to  having  any  offset  on  his 
part  counted  against  the  portion  of  the  demand  not  sued 
for.  Otherwise  plaintiff  would  have  to  dismiss  his  action 
or  suffer  judgment,  and  then  begin  a  new  action  for  the 
whole  claim,  including  the  part  about  which  there  is  no 
dispute.  That  is  surely  nothing  but  an  abuse  of  process, 
which  the  court  should  prevent,  for  the  law  must  be 

held  to  be  against  and  not  in  favor  of  abuses. 

********* 

In  the  case  where  the  keeper  of  an  animal  was  sued  for 
injuries  caused  by  a  horse  to  a  person  whom  he  had 
allowed  to  ride  with  him  by  way  of  accommodation 75 
I  agree  with  Fuchs  that  the  Supreme  Court  ought 
to  have  ruled  against  the  plaintiff.  This  is  on  the 
ground  that  obviously  he  would  himself  have  thought 
the  claim  inequitable  and  preposterous  if  he  had  been  in 

»  BGB  §  628. 

'»  Cited  in  JW,  1907,  p.  301;   "R&W"  pp.  54-59. 

n  BGB  §  912. 

'«  RGZ  66,  no.  62,  p.  266;   "R&W"  pp.  61,  81,  82. 

«  RGZ  65,  no.  75;   "R&W"  p.  67. 


§15]  DECISIONS  CRITICIZED  115 

the  shoes  of  the  defendant.  The  so-called  supplementing 
of  the  lacking  intention  of  the  legislator  by  the  court 7t! 
is  based  purely  on  fiction,  while  what  really  should  have 
taken  place  here  was  to  have  the  sense  of  justice  of  the 
court  decide.  In  a  case  like  this,  one  can  hardly  say 

that  the  facts  were  taken  into  consideration. 

********* 

§  16.     A  Difficult  Case.     The  next  case  considered  by 
Fuchs77  requires  more  detailed  discussion  in  view  of  its 
difficulty.    The  facts  were  that  a  ten-year-old  boy  was 
employed  as  a  laborer  in  a  coal  mine,  contrary  to  the 
statutory  provisions  of  the  Industrial  Code.78     He  lost 
several  fingers  of  a  hand  in  the  course  of  his  employment. 
The  question  arose:    Is  an  employee  illegally  employed 
to  be  taken  as  insured  within  the  meaning  of  the  Indus- 
trial Accidents  Insurance  act?    If  so,  he  will  receive  the 
compensation  provided  by  that  act  out  of  the  funds  of 
the  trade  association,  which  will  not  amount  to  very 
much,  but  he  is  excluded  from  all  further  claim  against 
the  employer.     If  the  answer  should  be  in  the  negative, 
he  will  retain  all  his  claims  upon  the  employer  (who  may 
possibly  be  insolvent),  but  will  receive  nothing  from  the 
trade  association.     In  either  case  he  is  threatened  with 
certain  risks.      The  Imperial  Court  declares  in  favor  of 
the  principle  that  the  first  alternative  is  preferable,  and 
I  believe  that  to  be  correct,  as  far  as  it  goes,  differing 
from  Fuchs.    The  proposition  is  presumably  based  on  the 
ground,  correct  from  the  standpoint  of  sociology,  that 
children  suffering  personal  injuries  in  such  cases  ought  to 
be  protected  at  least  to  the  extent  of  the  compensation 
provided  by  the  act,  and  payable  by   the   association, 
which  is  solvent.    In  the  concrete  case  at  bar,  the  boy's 

'«  RGZ  64. 

"  RGZ  66,  no.  14,  p.  42;  "R&W  "  pp.  72  seq.;   "G"  pp.  49  seq. 

'«  Industrial  Code,  §§  135,  154a. 


116      GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

claim  was  rejected  by  the  arbitrators  on  the  ground  that 
the  association  was  not  liable  where  the  contract  of 
employment  was  void  for  illegality.  The  Imperial 
Court,  in  accordance  with  the  contrary  views  expressed 
by  it,  dismissed  the  boy's  action  against  the  employer, 
which  had  been  begun  in  the  civil  court.  In  this  con- 
nection it  does  not  appear  why  section  135,  par.  3,  of  the 
Industrial  Accidents  Insurance  Act  was  not  applied, 
a  question  which  is  not  discussed  in  so  much  of  the  de- 
cision as  has  been  published.  According  to  that  provision 
the  ordinary  courts  are  bound  by  the  decisions  of  courts 
of  arbitration,  and  it  would  seem  that  the  Imperial 
Court  should  have  held  on  that  ground  that  the  employer 
was  liable.  Possibly  the  Court  failed  to  apply  this 
section  with  the  idea  in  mind  that  "valid  judgment" 
within  the  meaning  of  section  135,  par.  2,  would  refer 
merely  to  the  liability  or  non-liability  of  the  association, 
but  would  not  dispose  of  the  question  whether  the. 
ordinary  courts  were  bound  to  recognize  a  liability 
of  the  employer,  even  where  according  to  their  own 
view  none  existed,  in  obedience  to  the  decision  of  the 
arbitrators.  However,  we  could  not  assent  to  such  an 
opinion  from  the  sociological  standpoint ;  for  it  cannot 
possibly  be  the  intention  of  the  statute  that  in  a  con- 
crete case  like  this  unfortunate  one  the  person  injured 
through  the  fault  of  an  employer  should  receive  nothing 
at  all. 

§  17.  Further  Criticisms  Analyzed.  In  a  case  where 
a  party  has  refused  an  oath  which  as  put  comprised 
several  distinct  subject-matters,79  there  must  be  some 
way  by  which  the  court  above  may  remedy  the  over- 
sight through  which  the  oath  was  refused  entirely 
instead  of  regarding  the  objectionable  subject-matters 

onlv. 

/ 
'•  RGZ  66,  no.  50;  "R&W"  p.  78. 


§17]  DECISIONS  CRITICIZED  117 

With  reference  to  his  next  case,80  I  agree  with 
Fuchs  when  he  says  that  practical  considerations  and 
equity  require  that  the  vendor  of  a  defective  article,  in 
an  action  for  damages,  should  have  the  burden  of  proof 
regarding  any  defenses  he  may  have,  so  that  the  "legal 
deduction,"  on  which  the  Imperial  Court  expressly  relies, 

ought  not  to  be  decisive. 

********* 

I  now  proceed  to  a  consideration  of  the  decisions  criti- 
cized by  Fuchs  in  another  work.81 

Touching  the  first  case,82 1  agree  that  it  would  be  more 
correct  to  deny  the  right  of  claiming  a  reduction  of  the 
purchase  price  to  the  guarantor,  where  the  vendee  either 
cannot  or  will  not  demand  such  reduction.  There  is  no 
logical  necessity  growing  out  of  the  concepts  of  rescission 
of  a  sale  or  demand  for  a  reduction  of  price,  for  making 
a  distinction  in  the  relation  of  the  principal  debtor  to 
the  guarantor. 

Referring  to  the  next  case,83  one  feels  disgusted  at  the 
doctrine  that  a  man  who  has  been  declared  the  father 
of  an  illegitimate  child  is  not  allowed  to  interpose  a 
defense84  in  an  action  by  the  child  through  his  guardian, 
for  maintenance  and  support,  where  the  mother  had  been 
subsequently  convicted  of  perjury,  but  the  man  had  failed 
to  bring  an  action  to  set  aside  the  judgment  declaring 
him  to  be  the  father.  In  this  connection  we  may  call 
attention  to  the  more  correct  view  taken  by  the  First 
Criminal  Division,  to  which  prior  decision,  ^however,  the 
Sixth  Civil  Division  makes  no  reference.  "No  matter 
how  high  one  may  rate  the  sacredness  of  a  judgment, 

»«  RGZ  67;  "R&W"  p.  82. 
si  "G"  ch.  2,  pp.  27  seq. 
8!  RGZ  66.  no.  80;  "G"  i .  27. 
s'  RGZ  67,  no.  43;  "G"  p.  29. 
M  Under  BGB  §  826. 
ss  RG  Str  34,  282,  283. 


118      GMELIN:  SOCIOLOGICAL  METHOD  [CH.  Ill 

it   must  not   be   allowed   to   shield   the   wickedness  of 

criminality."86 

********* 

The  decision  next  brought  under  consideration87  is 
more  in  harmony  with  the  strict  rules  governing  negoti- 
able instruments,  it  seems  to  me,  than  the  opposite 
views  of  Fuchs.  It  was  possible  for  Adolf  M.  to  bind 
himself  personally.  The  fact  that  the  note  was  intended 
to  bind  the  firm  known  as  Adolf  M.,  of  which  Adolf  M. 
personally  was  the  attorney  in  fact,  should  have  appeared 

on  the  instrument  itself. 

********* 

The  distinction  relating  to  signature  by  an  attorney 
and  by  a  mere  amanuensis  mechanically  adding  the  sub- 
scription which  Fuchs  criticizes  in  his  book 88  is  well 
founded  in  the  statute.89  Even  though  in  the  latter  case 
signature  by  an  amanuensis  were  permissible,  nothing 
would  indeed  remain  of  the  requirement  of  "signature  in 
his  own  hand,"  required  by  the  section  of  the  Code.90 
Such  distinctions,  though  at  first  glance  they  may  sur- 
prise us,  are  not  to  be  avoided  in  any  body  of  law. 
********* 

§  18.  The  Subject  Continued.  It  is  shown 91  how, 
by  means  of  the  "constructive  and  dialectical"  method, 
actually  two  views  diametrically  opposed  to  each  other 
may  be  "proven."  In  this  case  a  creditor  accepted  the 
substitution  of  the  purchaser  of  mortgaged  property 
as  a  personal  debtor,  although  the  reference  to  this 
transaction  had  not  been  entered  on  the  record  of  con- 
veyances, as  required  by  the  section  of  the  Code.92 

«•  "G"  p.  30. 

»'  See  "G"  p.  33,  citing  from  JW  1908,  p.  280. 

«8  "G"  pp.  41,  42. 

w  Where  a  writing  is  required,  see  RGZ  50,  pp.  51,  81,  387. 

»»  BGB  §  126,  par.  1.  . 

91  "G"  pp.  46,  47;  ci.  also  p.  44. 

«  BGB  §  416,  par.  2. 


§18]  DECISIONS  CRITICIZED  119 

There  are  two  contradictory  decisions  of  the  Imperial 
Supreme  Court.93  Nobody  is  likely  to  deny  that  the 
second  of  these  decisions  is  obviously  correct  and  might 
easily  be  justified  in  two  simple,  easily  understood 

sentences. 

********* 

I  agree  again,  however,  with  Fuchs  in  his  criticism  of 
another  decision  cited.94  I  cannot  believe  it  to  be  good 
law  when  the  will  of  the  paralytic  widow  Schmidt  is 
declared  invalid  because  the  judge  before  whom  it  was 
made  had  not  required  her  expressly  to  state  that  she 
could  no  longer  write,  as  I  have  already  said.  I  also 
am  of  the  opinion  that  this  is  a  most  extraordinary  exag- 
geration of  the  blind  respect  for  forms,  and  shall 
reiterate,  notwithstanding  adverse  criticism,  that  a  deci- 
sion like  this  impresses  one  as  inhuman.  It  seems,  by 
the  way,  as  if  the  decision  had  met  with  universal  dis- 
satisfaction.95 

On  the  other  hand  I  am  not  on  the  side  of  Fuchs 
in  his  animadversions  on  two  other  Imperial  Supreme 
Court96  cases.  In  the  former  case  I  cannot  believe 
it  to  be  good  law  to  extend  the  sociological  reasons  which 
make  the  maxim  that  "purchase  destroys  hire"  inapplic- 
able to  the  rent  of  a  dwelling,  also  to  the  case  of  leasing 
hunting  rights,  which  is  a  contract  of  a  very  different 
nature.  In  the  other  case  I  am  of  the  opinion  that  a 
counter-complaint  in  a  separate  action  is  not  admissible 
at  all  in  cases  where  damages  are  sought  for  execution 
on  a  judgment  which  was  afterwards  set  aside,  when 
the  section97  of  the  Code  of  Civil  Procedure  gives  a 
special  remedy  in  such  cases.  For  this  reason  the  point 

«  Gruchot's  Beitrage  49,  p.  354;   RGZ  63,  p.  42. 

M  "G"  p.  277;  RGZ  68,  No.  79. 

•«  Comp.  Danz,  in  DJZ  1909,  pp.  100,  101 ;    Hell-wig,  ibid.  p.  426. 

««  JW  1909,  nos.  12,  and  22;  "G"  304,  295. 

•'  717,  par.  2. 


120      GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

that  the  counter-complaint  involved  a  larger  demand 
could  not  be  relevant. 

It  would  seem  that  anybody  who  has  painfully  worked 
himself  through  the  artificial  reasonings  in  the  decisions 
of  the  intermediate  and  supreme  courts,  and  then  finds 
in  the  appendix  to  Fuchs'  book  the  solutions  of  these 
problems  in  the  spirit  of  sociology,98  would  become 
imbued  with  the  enlivening  hope  that  at  last  common 
sense,  which  has  so  often  knocked  at  the  gates  in  vain," 
will  enter  triumphantly  into  the  temple  of  Themis. 

Regarding  what  Fuchs  calls  a  "decision  professorial 
and  assessorial"  reprinted  as  an  appendix  to  his  book100 
we  shall  have  to  admit  frankly  that  in  a  day  not  very 
remote  it  will  be  fit  for  exhibition  in  a  museum  of  legal 
curiosities  as  a  fossil  relic  of  a  method  long  since  sup- 
planted.101 

The  "scientific"  decision  of  the  Ober-Landesgericht 
[District  Court  of  Appeals]  I  consider  erroneous,  as 
Fuchs  also  regards  it.102  If  anybody  offers  a  thing  for 
sale  on  the  express  condition  of  cash  payment,  no  set 
of  circumstances  can  justify  a  judgment  forcing  him  or 
his  successor  in  law  to  part  with  the  goods  without 
such  cash  payment.  It  is  impossible  that  a  person  to 
whom  such  a  thing  should  happen  should  not  feel  that 
he  was  being  robbed  under  the  forms  of  law,  no  matter 
what  learned  arguments  may  support  such  a  decision.103 

••  For  instance,  page  308,  referring  to  JW  p.  55,  par.  25,  and  other 
places.  I  should  like  to  call  special  attention  to  the  last  paragraph  but 
one  on  page  261,  where  is  stated  concisely  and  well:  If  a  husband  is 
capable  of  purchasing  and  paying  for  land  to  become  part  of  the  commu- 
nity property,  he  must  also  be  capable  of  giving  a  mortgage  as  security  for 
the  purchase  price. 

•»  Common  sense  in  matters  of  law  and  true  subjective  sense  of  justice 
are  synonymous  terms. 

"o  Appendix  II,  p.  266. 

"»  It  should  be  observed,  however,  that  this  judgment  was  reversed 
by  the  Appellate  Court  at  Karlsruhe. 

i»»  See  "G",  Appendix  II,  p.  271;   "G"  p.  321. 

i"  "G"  p.  321. 


§18]  DECISIONS  CRITICIZED  121 

In  the  present  case  the  facts  would  entirely  justify  the 
assumption  that  the  delivery  should  take  place  on 
payment  of  the  balance  still  due,  and  that  before  this  was 
done  there  was  to  be  no  transfer  of  title.  Such  an 
assumption  would  have  been  in  harmony  with  the 
actual  circumstances  and  would  have  prevented  the 
inequitable  result  of  the  action. 

§  19.  The  Supreme  Court  Sometimes  Sociologically 
Correct.  The  character  of  the  list  of  cases  Fuchs  criti- 
cizes adversely  might  create  the  impression  that  he  is 
inspired  with  a  hostile  animus,  and  as  a  matter  of  fact 
that  charge  has  been  made  against  him.  I  believe  that 
there  is  no  ground  for  this.  Fuchs  gives  high  praise 
to  the  German  judiciary  in  general104;  and  where  he 
finds  sociologically  correct  judgments  he  calls  special 
attention  to  them  with  evident  pleasure.  All  correct 
decisions  were  found  without  idolatry  of  the  letter, 
"contrary  to  mechanical  pandectology,  which  means 
in  harmony  with  a  feeling  for  justice  unhampered  by 
traditional  routine,  and  with  an  understanding  of  the 
sub  j  ect-matter . ' ' 

As  illustrations  of  this  proposition  I  may  myself  call 
attention  to  the  feeling  of  relief  created  by  such  decisions 
as  that  in  which  the  court  held  the  restrictions  on  their 
liability  which  the  management  of  the  Kiel  Canal  had, 
in  the  interest  of  the  Treasury,  imposed  on  ships  passing 
through  the  canal  to  be  illegal  exploitation  of  a  mono- 
poly.105 Similarly,  I  call  attention  to  a  number  of 
decisions  in  which  various  commercial  abuses  were  held 
improper,  such  as  the  commingling  of  goods  with  others 
of  inferior  or  worthless  quality.  In  the  matter  of  prac- 
tice and  procedure  also,  the  Imperial  Court  has  reaped 
its  brightest  laurels  in  those  decisions  which  make  for 

i°«  "G"  p.  28,  8. 

io>  RGZ  62.  266;  68,  358. 


122       GMELIN :  SOCIOLOGICAL  METHOD  [  CH.  Ill 

a  thorough  investigation  of  the  facts,  such  as  where  it 
insists  on  the  exercise  of  the  duty  of  the  judge  to  interro- 
gate witnesses  (section  139,  Code  of  Civil  Procedure)106; 
or  when  it  carries  on  a  persistent  warfare  against  recur- 
rent attempts  of  the  lower  courts  to  restrict  the  right  of 
submitting  evidence.107  Thereby  the  Court  supported  a 
truly  sociological  idea,  to  wit:  the  primary  need  of 
thoroughly  mastering  all  the  facts,  against  the  resistance 
of  legal  formalism. 

§  20.  Individual  Errors  or  False  Method.  I  believe 
that  this  detailed  reexamination  of  the  cases  commented 
on  by  Fuchs  affords  a  sufficient  basis  from  which  to  pro- 
ceed toward  the  solution  of  this  question : 

Is  this  simply  a  matter  of  individual  erroneous  decis- 
ions among  the  judgments  of  the  Imperial  Court  (num- 
bering about  2500  annually) ,  and  is  the  same  thing  true 
of  the  numerous  decisions  of  the  lower  and  intermediate 
courts,  which  Fuchs  in  accordance  with  the  Imperial 
Court  considers  erroneous? 

To  this  question  the  answer  must  be  in  the  negative. 
The  whole  method  involved  is  faulty.  This  false  method 
is  exhibited  in  all  cases  in  which  unsatisfactory  and, 
to  use  plain  terms  for  the  sake  of  truth,  unjust  judgments 
were  rendered.  In  all  such  cases  we  can  find  the  invaria- 
ble characteristic  that  decisions  are  based  on  doubtful 
arguments  drawn  from  the  letter  of  the  statute  or  an 
artificial,  abstract  deduction,  while  reasonable  inferences 
from  the  concrete  facts,  equity,  and  the  subjective  sense 
of  justice  were  neglected.108  For  where  a  mere  reading  of 
the  opinion,  as  is  the  case  in  not  a  few  of  the  decisions 

10«  This  is  called  one  of  the  shining  examples  of  how  the  Imperial 
Court  administers  the  law  in:  Schneider,  "Die  richterliche  Ermittlung  des 
Sachverhalts,"  1888,  p.  109. 

"7  The  Imperial  Court  has  "insisted  on  this  constantly  in  a  most 
meritorious  and  intelligent  manner";  R.  Schmidt,  "Lehrbuch  des  Zi- 
vilprozesses,"  §72,  ii,  sub-section  2. 

»o«  Comp.  below,  sec.  22. 


§20]  WHERE  THE  DEFECT  LIES  123 

cited,  causes  a  feeling  of  annoyance,  pain  or  indig- 
nation, one  may  rest  assured  invariably  that  interests 
entitled  to  protection  have  had  to  give  way  for  lesser 
interests  on  the  opposite  side,  or  that  they  have  been 
sacrificed  to  legal  technicalities.  In  all  these  cases  a  more 
liberal  interpretation  of  the  statute,  the  omission  of 
unreal,  abstract  argumentation,  the  weighing  of  interests 
in  accordance  with  the  manner  in  which  the  business 
world  looks  at  these  things,  and  lower  value  put  on  tech- 
nicalities would  have  given  the  victory  to  the  just  claims 
of  the  parties. 

Thus  we  must  recognize  that  it  is  vain  to  hope  that 
mere  abstract  knowledge  of  laws  and  statutes  and 
their  purely  abstract  application  will  suffice.  In  that 
way  we  shall  miss  the  true  mark,  and  substantial  justice 
will  be  wounded  a  thousand  times.  Nothing  can  come 
of  it  but  fatal  error  repeated  again  and  again  with  a  cer- 
tain appearance  of  right.109 

It  follows  that  the  essential  element  in  the  adminis- 
tration of  justice  is  to  be  sought  in  a  place  different 
from  that  in  which  it  has  been  looked  for  in  the  past. 
The  very  kernel  of  the  work  of  the  judiciary  lies  in  the 
just  government  of  the  real  interests  and  possessions  of 
human  beings.  The  scholastic  and  dialectical  method 
prevailing  to-day,  attempting  as  it  does  to  draw  the 
decision  as  logical  conclusion  from  the  legal  rule,  by 
means  of  verbal  interpretation  supplemented  by  purely 
verbal  inferences,  without  proper  weighing  of  conflicting 
interests  and  without  considering  whether  the  result  will 
be  reasonable  or  not,  is  decidedly  wrong.  Unless  we 
realize  that  it  is  the  business  of  courts  to  serve  the  inter- 
ests of  actual  life  and  to  adapt  their  judgments  to  them, 
instead  of  forcing  the  facts  into  a  bed  of  Procrustes 

io»  Fuchs  may  rightfully  claim  the  merit  of  having  given  brilliant 
proof  of  this  by  his  inductive  method. 


124       GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

according  to  some  schematic  formula,  we  are  on  the  wrong 
road,  and  we  shall  err  fatally  in  imagining  that  we  can 
ever  obtain  certainty  of  the  law  in  this  manner. 

§  21.  The  Prevailing  Method  not  Working  Properly. 
For  nothing  is  more  certain  than  this:  all  the  decisions 
we  have  referred  to  as  substantially  unjust  are  supported 
by  undoubtedly  acute  legal  arguments  that  cannot 
be  gainsaid  from  the  standpoint  of  formal  logic.110  This 
fact  proves  that  the  prevailing  method  of  finding  the 
decision  by  logical  deduction  from  the  legal  rule  does  not 
work  properly.  It  seems  to  be  an  open  secret  that  in  the 
majority  of  cases  we  can  support  both  sides  of  a  con- 
tention by  deductions  and  constructions  drawn  from 
the  rule  by  faultless  logic.  In  courts  composed  of  several 
justices,  where  the  decisions  are  notoriously  often 
adopted  by  a  mere  majority  vote,  "the  defeated  minority 
could  support  the  opposite  decision  by  drawing  from  the 
rule  pandectological  arguments  that  would  be  quite  as 
beautifully  logical."  If  that  is  admitted,  it  is  quite 
possible  to  come  to  the  conclusion  that  our  decisions  are 
"accidental  products  of  juridical  construction." 

The  courts  must  therefore  make  it  clear  to  themselves 
that  they  are  deceived  when  they  take  comfort,  as  they 
have  done  in  the  past,  in  the  fact  of  having  deduced 
their  judgment  by  formally  correct  conclusions  from 
legal  rules.  They  should  know  that  the  sense  of  justice 
of  our  age,  sharpened  as  it  is  by  social  and  sociological 
ideas,  demands  first  of  all  a  just  decision,  found  by  the 
balancing  of  the  substantial  interests  involved,  so  as  to 
regulate  and  govern  the  legal  relations  submitted  to 
the  judges  in  a  reasonable  and  comprehensible  manner. 
Such  order  can  be  brought  out  of  confusion  by  no  judge 

110  It  is  even  true  (see  "G"  146,  147)  that  judgments  wrong  and  unjust 
from  the  sociological'  point  of  view  are  supported  by  greater  deductive 
acumen  than  those  sociologically  correct. 


§21]  AN  INEFFECTUAL  WAY  125 

who  fails  to  seek  first  of  all  what  is  just,  subject  to  the 
controlling  function  of  the  positive  statute.  "The 
certainty  of  the  law  is  not  determined  by  pandectology, 
which  is  little  more  than  a  lottery,  but  by  the  personal 
character  and  substantial  experience  of  the  judge."111 
To  eliminate  the.full  influence  of  the  judge's  individuality 
in  favor  of  a  phantom  of  certainty  and  equality  is  con- 
trary to  the  nature  of  law,  turns  the  administration 
of  justice  into  mechanical  machinery  and  renders  it 
unadapted  to  real  life."112 

§  22.     The  Sense  of  Justice.      Yet  it  is  held  pretty 
generally,  at  the  present  time,  that  the  individual  sense 
of  justice  is  an  inadmissible  and  unprofitable  factor  in 
the  administration  of  law.    Sense  of  justice  is  identified  U 
with  arbitrary  will,  and  it  is  denied  more  or  less  emphati-^ 
cally  that  this  can  become  the  proper  basis  for  a  judicial 
decision. 

To  deny  the  existence  of  a  subjective  or  individual  I 
sense  of  justice  would  be  to  contradict  all  experience,  y 
Such  a  sentiment  exists  as  certainly  as  does  conscience, 
with  which  it  is  allied  by  many  essential  features.  Long 
ago  the  Romans  knew  that  this  feeling  may  be  increased 
and  strengthened  by  practice  and  training.  That  is 
why  they  spoke  of  "constans  et  perpetua  voluntas  jus 
suum  cuique  tribuendi."  How  absurd,  however,  to 
eliminate  this  feeling  from  the  very  place  where  it  is 
especially  fitted  to  exercise  its  function!  Of  all  places, 
from  the  heart  of  the  judge  whose  calling  makes  it  his 
duty  to  cultivate  and  develop  this  feeling  in  himself! 
Do  not  all  men  in  ordinary  life  draw  their  conclusions  as 
to  what  is  just  from  this  inborn  sentiment  in  a  million 
cases  which  are  never  submitted  to  a  court  and  which 
form  by  far  the  greater  portion  of  the  facts  to  which  law 

in  »G"  84. 

112  -G"  188,  189. 


126       GMELIN :  SOCIOLOGICAL  METHOD  [  CH.  Ill 

and  justice  is  applied?  Does  a  well-disposed  layman,  in 
attending  to  his  affairs,  ever  consult  anything  but  his 
experience,  his  common  sense  and  his  conscience,  which 
we  all  know  speaks  in  plain  language  to  him  who  stands 
at  the  parting  of  the  ways?"113  Yet  will  it  be  said  that  as 
a  matter  of  principle  the  judge  is  obliged  to  act  differ- 
ently, the  judge,  whose  business  it  is,  as  Klein  says,  to 
tell  the  parties  what  they  ought  to  have  done  before  they 
came  into  court?114  Is  there  really  an  insuperable  barrier 
between  doing  business  under  the  law  and  the  rendering 
of  judgment  on  the  law?  Can  it  be  that  the  function 
££the  judge  is  not  to  regulate  the  working  of  the  law  in 
actual  life  according  to  the  nature  of  legal  life,  but  to 
impose  upon  such  legal  life  something  alien  to  it,  discov- 
ered in  the  statute  by  means  of  speculation  and  abstract 
argumentation?  Are  not  the  laws  supposed  to  be  merely 
the  formal  expression  of  the  manner  in  which  economic 
and  social  intercourse  is  reasonably  carried  on?  Was 
Vfiere  not  bartering  and  selling  before  there  were  statutes 
prescribing  what  duties  were  to  grow  out  of  such  trans- 
actions for  the  participants?115  Was  Zeppelin  to  defer 
the  conquest  of  the  air  until  aerial  traffic  had  been 
regulated  in  neat  little  rules  and  sections?116  Where  is 
the  judge  to  find  decisions  for  conflicts  arising  out  of 
relations  not  regulated  by  statutes,  if  not  in  natural 
equity  in  the  light  of  a  fair  balancing  of  the  interests 
'  involved?117  And  how  are  you  going  to  eliminate  the 

»»  Comp.  "G"  11. 

»«  Ibid. 

»•  Comp.  the  excellent  passage  in  the  report  ("Motive")  on  the  bill 
to  regulate  the  relations  between  authors  and  publishers  (Act  of  June 
19,  1901),  where  Danz  says  (p.  24)  that  the  bill  did  not  intend  to  create 
new  law  but  merely  to  recognize  and  affirm  the  practice  already  prevail- 
ing. That  is  the  true  type  of  the  growth  of  law. 

"•  "G"  58. 

»'  It  is  true,  however,  that  equity  must  be  distinguished  from  sub- 
jective sense  of  justice  in  so  far  as  it  represents  the  general  sense  of  what  is 
just.  This  has  led  Schmolder  ("Die  Billigkeit,"  p.  35)  to  treat  equity  as 


§22]  SENSE  OF  JUSTICE  127 

natural  sense  of  justice  where  the  statute  expressly  refers* 
to  it,  as  it  does  when  it  speaks  of  "weighty  reasons," 
"good  morals,"  or  "good  faith"?  What  blindness,  to 
demand  of  the  judge  that  he  forget  his  subjective  sense 
of  justice!  No,  indeed!  Unless  one  is  ready  to  involve 
himself  in  absolutely  monstrous  and  insupportable  incon- 
sistencies, he  will  have  to  recognize  that  the  court  must 
as  far  as  possible  declare  the  law  to  be  as  people  would 
naturally  do  in  their  daily  intercourse ;  in  other  words, 
he  must  call  to  his  aid  the  subjective  sense  of  justice.  _ 
There  is  another  reason  why  this  should  be  so.  This 
manner  of  finding  the  law,  which  appears  so  strange  to 
the  learned  judges,  is  already  applied  to  a  very  con- 
siderable extent  in  the  lay  courts  recognized  by  law. 
As  a  matter  of  fact  a  lay  court  is  quite  sure  always  to 
ask  itself  first,  what  would  be  done  in  any  given  case  by 
a  sensible  person  called  in  to  act  as  a  peacemaker  trying 
to  be  fair  to  both  sides;  after  that  it  will  consider 
whether  the  statute  will  permit  them  to  render  a  decision 
accordingly.  In  the  commercial  courts,  where  I  have 
experience,  the  presiding  judge  will  hardly  do  otherwise 
if  he  means  to  convince  the  lay  assessors  of  the  correct- 
ness of  the  decision.  If  it  is  claimed  that  the  adminis- 
tration of  law  as  thus  carried  on  in  the  lav  courts  is 


synonymous  with  popular  sense  of  justice.  Afterwards,  however,  he 
recognizes  expressly  (p.  56)  that  equity  substitutes  the  "pleasure" 
("placitum")  of  the  individual  judge  for  formulated  rules.  Hence  must 
follow  that  a  certain  degree  of  subjective  discretion  on  the  part  of  the 
judge  must  be  conceded  if  equity  is  to  remain  a  factor  in  the  administra- 
tion of  justice.  For  without  such  discretion  one  could  not  know  what  is 
equitable.  To  eliminate  equity  from  the  "ars  boni  et  aequi"  is  simply  un- 
thinkable. In  discussing  the  subjective  discretion  of  the  judge  we  must 
not  forget  that  his  knowledge  of  the  whole  body  of  law  and  the  inter- 
dependence of  its  parts  (say,  e.g.,  with  regard  to  the  utility  of  pre- 
scribed formalities  and  the  necessity  of  enforcing  them)  will  so  vitally 
affect  his  original  sense  of  justice  that  a  new  and  peculiar  condition  of  his 
mind  is  the  result.  Of  this  condition  the  judge  could  not  rid  himself  in 
any  particular  case,  even  if  he  wished  to  do  so,  any  more  than  a  medical 
expert,  in  testifying,  could  eliminate  his  knowledge  of  medicine. 


128      GMELIN:  SOCIOLOGICAL  METHOD  [CH.  Ill 

wrong  in  principle,  we  shall  have  to  maintain  that  in 
Germany  there  are  two  ways  of  rendering  justice,  one 
of  which  is  utterly  irreconcilable  with  the  other. 

§23.  The  Theoretical  Conception  of  Judgment.  Besides 
the  formalism  which  would  eliminate  the  sense  of  justice 
and  simply  subsume  the  matter  to  be  considered  under 
some  statutory  provision,  another  factor  plays  its  part 
in  exerting  a  considerable  influence  on  the  formalistic 
method.  That  is  the  theoretical  conception  of  a  judg- 
ment in  civil  actions. 

Commentators  on  procedure  usually  have  little  to  tell 
us  about  the  nature  of  a  judgment,  except  that  a  judg- 
ment is  the  "final  decision  rendered  by  the  court  after 
an  obligatory  oral  trial."  The  prevalent  idea  regarding 
the  substantial  nature  of  a  judgment  in  a  civil  action  is 
that  the  judge  has  to  "bring  the  case  under  the  statute," 
to  subsume  it.  Following  Savigny,  we  are  taught  that  a 
judgment  is  a  syllogism  wherein  the  legal  rule  is  the  major 
premise,  the  facts  the  minor  premise,  the  decision  the 
concluding  member.  In  practice,  at  least,  we  have  never 
progressed  beyond  this  point.  The  idea  seems  to  be: 

I  if  we  have  established  the  facts  and  found  the  proper 
rule,  the  decision  will  spring  up  of  itself,  so  to  speak. 

A  judgment  is  conceived  to  be  declaratory  in  its 
nature.  According  to  Gaupp-Stein,118  a  judgment  is  "a 
declaration  stating  what  is  the  law  as  applied  to  a  state 
of  facts  and  the  condition  of  an  action,"  and  it  is  said 
to  be  "but  seldom"  that  the  "decision  is  at  the  same  time 
imperative  as  to  what  shall  be  the  legal  relation  of  the 
parties  —  meaning,  in  the  latter  case,  so-called  consti- 
tutive actions  [i.e.,  actions  in  which  a  judgment  is  sought 
that  merely  declares  what  the  duty  of  the  defendant  is 
toward  the  plaintiff  as,  for  instance,  actions  simply  for 
an  accounting,  for  restoration  of  marital  rights,  etc.]. 

"'  "Code  of  Civil  Procedure":  introduction  to  section  300. 


§23]  AN  ERRONEOUS  THEORY 

Now  here,  in  my  opinion,  we  have  before  us  one  of  the 
fundamental  troubles  under  which  our  system  of 
administering  justice  is  laboring.  The  assumption  that — • 
the  decision  is,  in  its  essential  nature,  equivalent  to  a 
logical  conclusion  is  erroneous.119  The  decision  and  judg- 
ment is  not  merely  a  logical  conclusion;  it  is  also  an 
exercise  of  the  power  of  the  State  in  the  interest  of 
keeping  the  peace  under  the  law.  The  judicial  determin- 
ation has  under  all  circumstances  the  characteristics  of 
an  act  of  will  on  the  part  of  the  State  and  consequently 
it  must  necessarily  be  a  command,  for  the  reason  that 
one  cannot  conceive  of  acts  of  will  under  the  authority 
of  the  State  except  under  the  form  of  commands.  This 
is  clearly  seen  by  Fuchs  also:  "The  traditional  concep- 
tion is  that  the  judge  first  formulates  the  major  premise 
from  the  statute  and  its  interpretative  materials;  next 
he  subsumes  the  state  of  facts  under  this  rule,  and  finally 
he  deduces  his  decision  as  the  logical  conclusion.  If  we 
recognize  the  lack  of  truth  and  reality  in  this  scholastic 
tradition,  we  have  comprehended  the  whole  essence  of 
the  inductive  method  in  the  administration  of  law." 

However,  by  this  very  conception  of  the  nature  of 
decision  and  judgment  which  we  have  characterized  as 
being  erroneous,  one  is  scarcely  less  than  compelled  to 
rely,  in  a  manner  not  justified  by  reason,  on  the  dialecti- 
cal method.  It^is  very  different  when  one  conceives  of 
judicial  determination  as  a  command  or  an  act  of  will 
by  the  State.  That  cuts  off  at  once  the  possibility  of 
deducing  this  will  dialectically  from  the  rule  of  law. 
In  this  way,  however,  the  importance  of  the  formulated 
rule  is  restricted,  without  further  difficulty,  to  the 
limits  imposed  by  the  nature  of  the  subject.  The  judge, 

»»  Comp.  Billow,  "Gesetz  und  Richteramt,"  Leipzig,  1885,  pp.  5 
seq.;  Gmelin,  "Die  Vollstreckbarkeit,"  Tubingen,  1898,  p.  48.  See 
also  "R&VV"  81,  where  judgments  are  denned  as  "authoritative  categorical 
declarations";  and  "G"  35. 


130       GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

in  trying  to  find  the  correct  decisions,  can  no  longer 
start  from  the  idea  that  somehow  there  is  concealed  in  the 
facts  of  the  case  a  rule  the  counterpart  of  which  he  must 
find  in  the  provisions  of  his  Code.  He  will  feel  instead 
that  his  task  is,  by  an  act  of  will,-  to  regulate  the  exercise 
of  the  mutual  rights  of  the  parties  and  to  make  a  just 
distribution  of  the  property  in  question.  He  will  remem- 
ber that  he  is  there  to  help  the  parties  to  achieve  the 
purposes  for  which  their  various  transactions  were  under- 
taken, so  far  as  these  purposes  are  not  disapproved  by  the 
law,  and  to  give  to  parties  whose  rights  have  been 
invaded  without  any  act  of  their  own  such  protection 
as  they  are  entitled  to  in  the  way  of  a  reasonable  and 
just  regulation  of  their  interests.  The  first  thing 
required,  therefore,  is  to  direct  the  will  of  the  judge  t 
the  reasonable  and  just  result  within  the  limits  of  th 
positive  rule  of  law.120 

§  24.  The  Balancing  of  Interests.  Here  is  where  the 
balancing  of  interests  by  the  judge  comes  to  his  aid. 
This  is  no  imaginative  thing  but  a  substantial  reality. 
For  the  things  to  be  weighed,  the  material  interests, 
exist  and  are  easily  understood  if  one's  mind  is  directed 
toward  them.  This  balancing  of  interests  will  furnish 
the  solid  basis  for  the  subjective  sense  of  justice  that  is 
to  guide  the  will.  The  balancing  itself  is  in  turn,  to  a 
great  extent,  aided  by  the  general  manner  in  which  the 
business  world  looks  upon  the  subject.  In  those  cases, 
however,  where  the  business  world  has  not  yet  formed 
a  general  opinion  upon  a  subject,  it  will  be  the  function  of 
the  judge  to  create  such  an  opinion  and  to  give  it  th 
form  he  would  give  it  if  he  were  acting  as  legislator.121 

120  \Ve  do  not  fail  to  see  that  in  the  case  of  a  very  simple  state  of  facts 
there  is  no  room  for  discretion  as  long  as  the  court  remains  faithful  to  the 
words  of  the  statute  in  the  measure  advocated  in  the  text. 

"i  In  a  number  of  decisions  of  the  Imperial  Court,  notably  in  the 
well-known  decision  of  Nov.  2,  1907,  regarding  the  retention  of  title  in 


§24]       THE  BALANCING  OF  INTERESTS         131 

The  subjective  sense  of  justice  will,  accordingly,  find 
substantial  support  in  the  actual  rights  and  interests  of 
parties  in  the  habits  and  opinions  of  the  business  world, 
and  the  needs  of  human  intercourse.  The  courts  them- 
selves will  concede  that  much  greater  authority  should  be 
attributed  to  a  sense  of  justice  supported  by  these 
material  factors  than  they  have  ventured  to  do  in  the  past. 
They  will  feel  at  liberty  to  find  their  proper  functions 
in  something  else  than  an  anxious  search  for  legal 
principles  supposed  to  be  concealed  in  the  facts  of  the 
case. 

The  whole  of  the  judicial  function  has  accordingly 
been  shifted.  From  the  standpoint  we  contend  for  it 
appears  like  the  following:  The  will  of  the  State, 
expressed  in  decision  and  judgment,  is  to  bring  about 
a  just  determination  by  means  of  the  subjective  sense  oi 
justice  inherent  in  the  judge,  guided  by  an  effective 
weighing  of  the  interests  of  the  parties  in  the  light  of  the 
opinions  generally  prevailing  among  the  community 
regarding  transactions  like  those  in  question.  The 
determination  should  under  all  circumstances  be  in 
harmony  with  the  requirements  of  good  faith  in  business 
intercourse  and  the  needs  of  practical  life,  unless  a  posi- 
tive statute  prevents  it;  and  in  weighing  conflicting 
interests  the  interest  that  is  better  founded  in  reason 
and  more  worthy  of  protection  should  be  helped  to 
achieve  victory. 

§  25.  The  Need  of  a  Change  in  Attitude.  If  the 
conception  of  judicial  functions  outlined  above  is  in 
line  with  what  Fuchs  is  aiming  at,  as  I  do  not  doubt 
that  it  is,  although  he  may  not  yet  have  expressed 
it  in  this  form,  then  I  do  not  hesitate  to  declare  that  the 

machinery,  this  point  of  view  is  not  understood,  and  instead  the  court 
tries  to  discover  what  the  general  popular  custom  is  regarding  a  subject 
on  which  there  is  no  such  popular  custom. 


132       GMELIN:  SOCIOLOGICAL  METHOD  [CH.  Ill 

results  of  this  reasoning  point  the  way  toward  a  com- 
plete revolution  in  the  theoretical  notions  now  prevail- 
ing regarding  the  judicial  function  in  civil  actions,  and 
consequently  in  the  practical  administration  of  the  law.122 

If  the  views  here  maintained  are  correct,  it  is  time  we 
should  get  rid  of  the  attempts,  now  shown  to  be  fruitless, 
to  deduce  the  decision  dialectically  from  the  formu- 
lated rule.  The  place  of  these  attempts  will  be  taken  by 
proof  that  the  decision  is  within  the  formulated  rule,  but 
this  proof  would  become  the  second  step,  while  at  present 
the  deduction  from  the  rule  is  the  first  step  in  the  mental 
process.  Instead  of  that,  the  grounds  of  decision  will 
hereafter  prove  (and  one  is  tempted  to  say  that  this  in- 
volves a  shifting  of  the  burden  of  proof  which  now  rests 
on  the  writer  of  the  decision)  first  of  all  that  the  distri- 
bution of  property  and  rights,  as  contained  in  the  judg- 
ments, is  in  accordance  with  right  and  justice.  It  is  to 
be  just  in  this  sense  also  that  the  decision,  in  case  the 
matter  to  be  decided  is  a  type  of  similar  cases,  must  be 
fit  to  constitute  a  rule  for  future  cases  of  the  same  kind. 
In  this  view  of  the  matter,  however,  the  statute  or  rule 
retains  its  authority  to  this  extent  that  the  judge  must 
show  that  what  he  wills  and  commands  is  within  the 
limits  of  the  positive  statute,  that  the  rules  applying 
to  the  matter  do  not  necessarily  require  the  opposite 
decision,  and  that  the  decision  does  not,  accordingly, 
violate  the  law  within  the  meaning  of  section  549,  Code 
of  Civil  Procedure. 

§  26.  Objections  to  the  New  Method.  Does  not  the 
new  method,  however,  imperil  most  seriously  the  cer- 
tainty of  the  law?  That  question  I  shall  answer  by  the 
counter-question:  Does  such  certainty  exist  at  present? 


'   / 
IV 


»»  We  shall  have  to  contend  that  this  conception  is  a  new  one  until  it 
is  shown  that  conscious  sociological  methods  are  in  practical  use  by  the 
courts  even  now. 


§26]  OBJECTIONS  ANSWERED  133 

"It  is  plain  to  be  seen  that  nobody  can  know  what  his 
rights  are  if  the  courts  go  on  supplementing  the  statutes 
in  the  manner  they  are  doing  now."  "Anybody  unfor- 
tunate enough  to  fall  into  the  clutches  of  a  fanatic  for 
logical  deductions  and  legal  fictions  will  find  that  a  law- 
suit is  purely  a  lottery."  "It  is  possible  to  'deduce'  aln 
sorts  of  legal  results,  which  may  be  wholly  inconsistent  I 
with  each  other,  out  of  the  same  state  of  facts,  because 
the  selection  of  a  starting  point  for  the  process  of  deduc- 
tion is  not  hindered  by  any  regard  for  realities."  He 
who  says  these  things  is  not  even  that  terrible  fellow 
Fuchs,  but  a  German  university  professor,  Ernst  Stampe 
of  Greifswald,123  whose  good  intentions  nobody  can  deny, 
and  who  yet  demands  earnestly  that  interests  be  balanced 
on  a  sociological  basis.  To  be  sure,  he  must  admit  that 
the  ears  of  the  practitioners  have  up  to  this  time  been 
deaf  to  all  such  demands.  "Many  of  our  practical  friends 
are  loath  to  give  up  their  pleasant  walks  in  the  paradise 
of  legal  abstractions,  where  they  can  pick  up  without 
trouble  a  nosegay  of  concepts  from  which  to  'deduce' 
any  sort  of  decision.  They  decline  to  taste  of  the  apples 
from  the  tree  of  social  knowledge.  They  murmur  when 
the  scales  of  Justice  are  to  be  used  in  the  prosaic  business 
of  weighing  interests."  m  Well,  I  believe  that  the  deaf 
ears  of  practitioners  may  be  opened  to  an  appeal  pro- 
nounced with  the  power  of  united  voices.  If  Fuchs  as 
the  champion  has  cried  too  loudly  in  the  turmoil  of  our 
age,  he  may  be  excused  on  account  of  the  indifference 
which  all  great  problems  encounter  in  our  day. 

>*'  In  his  paper  on  "Unsere  Rechts-  und  Begriffsbildung,"  Greifswald, 
1907,  Abel,  pp.  6,  37.  He  names  among  his  precursors,  expressing  sim- 
ilar ideas:  Jhering,  Baer,  Billow,  Rumelin,  Meili,  Schlossmann,  and 
especially  Heck,  andEhrlich. 

"«  Says  Stampe:  "If  the  Imperial  Court  were  to  incline  frankly  toward 
this  method  instead  of  using  its  great  skill  and  experience  to  promote 
the  habit  of  abstract  scholasticism,  the  most  beneficial  consequences 
would  soon  be  apparent." 


134      GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

We  cannot  gainsay  Fuchs  when  he  calls  on  "all  his 
colleagues  at  the  bar  from  Konigsberg  to  Colmar" 
to  be  his  witnesses  for  th£  prevailing  uncertainty  regard- 
ing the  outcome  of  any  lawsuit  about  to  be  instituted. 
Such  uncertainty  is  bound  to  grow  up  while  a  method 
prevails,  as  we  have  shown,  in  our  administration  of 
justice,  by  which,  more  or  less  consciously,  mere  system- 
building  and  formalism  become  paramount.  In  the 
course  of  that  method,  unjust,  inequitable  results  neces- 
sarily flowing  from  the  dialectical  method  are  accepted 
as  matters  of  course,  for  formalism  and  lack  of  feeling 
are  notoriously  allied.  In  the  light  of  my  own  experience 
I  cannot  hold  Fuchs  to  be  wrong  when  he  asserts125: 
"The  latter-day  judge  is  not  surprised  at  any  result,  on 
matter  how  inequitable;  on  the  contrary,  especially  if 
he  can  find  a  few  precedents,  he  comes  to  believe  that 
even  the  most  unjust  decision  is  right." 

Any  one  of  us  judges  who  has  occasion  in  some  matter 
to  venture  a  prediction  regarding  the  outcome  of  a  law- 
suit will,  in  view  of  the  flood  of  doubtful  points  existing 
to-day,  feel  himself  overwhelmed  by  a  feeling  of  uncer- 
tainty. 

§  27. '  Some  Objections  Refuted.  My  own  discussion 
of  the  decisions  criticized  in  Fuchs's  books  has  shown, 
no  doubt  to  the  great  joy  of  adherents  of  the  old  school, 
that  differences  of  opinion  regarding  particular  cases  are 
quite  possible  even  from  the  sociological  point  of  view. 

is  true  that  "Even  under  the  sociological  method 
decisions  will  not  be  produced  automatically."  In  the 
first  place,  however,  it  is  fair  to  assume  that  in  innumer- 
able cases  it  will  be  easier  to  reconcile  the  opinions  of  the 
members  of  a  court  if  the  whole  bench  tries  earnestly 
to  put  into  effect  what  is  equitable  and  just  than 
if  they  indulge  in  fruitless  wrangling  about  learned 

«« "G"  p.  159. 


§27]  OBJECTIONS  ANSWERED  135 

concepts.  "Between  different  points  of  view  regarding  the 
act  of  a  party,  between  differing  appreciations  of  the 
good  faith  and  merits  of  an  action,  it  is  possible  to  find 
a  middle  line.  The  severity  of  one  judge  may  be  tem- 
pered by  the  fairness  and  kindness  of  another.  In 
proportion  as  a  judgment  is  to  be  based  on  legal  tact, 
a  sense  of  morality  and  the  instinct  of  long  experience, 
each  judge  will  become  more  tolerant  of  the  differing 
opinion  of  his  neighbor  on  the  bench.  Conversely,  per-^; 
tinacious,  stubborn  maintaining  of  one's  own  opinion 
is  natural  where  one  has  arrived  at  his  results  purely  by 
a  reasoning  process,  so  that  any  concession  would  involve 
the  admission  that  the  reasoning  of  the  other  was  betteri 
than  one's  own."  Again,  we  find  a  powerful  ally  in 
Mendelssohn-Bartholdy,  who  is  the  author  of  the  fol- 
lowing:126 "In  the  sociological  contest,  the  most  reason- 
able, respectable,  and  appropriate  solution  will  prevail 
in  most  instances,  while  in  a  pandectological  disputation 
the  most  unreasonable  and  impractical  solution  has  just 
about  an  even  chance  with  its  opposite."  It  is  perhaps 
not  going  too  far  if  one  asserts,  in  view  of  the  positive 
material  submitted,  that  it  is  henceforth  impossible  suc- 
cessfully to  contradict  the  above  statement. 

We  may  assume  as  certain  that  definite  guiding  lines 
will  gradually  develop  as  the  sociological  method  becomes 
more  familiar.  My  own  opinions  in  that  respect  I  may 
briefly  state  as  follows:  We  should  get  to  the  point 
where  the  proper  task  of  a  judge  is  generally  considered 
to  be  the  just  distribution  of  property  and  rights  among 
the  parties,  and  where  it  is  no  longer  held  sufficient  if 
the  decision  appears  as  a  formally  correct  logical  deduc- 
tion from  the  statute.  We  should  rather  demand  that  the 
decision  will  stand  as  a  just  judgment,  both  "in  foro 

»'«  In:  "Das  Imperium  des  Richters,"  p.  115,  Strassburg,  1908, 
Triibner. 


136       GMELIN:  SOCIOLOGICAL  METHOD  [Cn.III 

interne"  of  the  judge,  and  in  the  estimation  of  the  persons 
concerned.127 

The  idea  that  decisions  based  on  purely  dialectical 
argumentation  have  the  alleged  quality  of  logical  neces- 
sity is  a  figment  of  the  imagination.  The  writer  himself 
used  to  believe  this,  but  I  now  renounce  any  such  opinion. 
We  shall  have  to  get  along  without  the  pretense  that  our 
decisions  are  logical  necessities.  Judges  should  be  as 
independent  as  possible  both  of  precedents  with  the 
deductions  therefrom,  and  of  the  artificial  deductions  of 
jurists. 

§  28.  Some  Opinions  Regarding  the  New  Method. 
The  task  remains  of  surveying  the  reception  hitherto 
accorded  to  the  new  ideas. 

In  an  ingeniously  and  cleverly  written  article  recently 
published,128  Vierhaus  attempts  to  describe  the  school 
of  free  legal  decision  as  one  of  those  symptomatic  mani- 
festations of  the  time  which,  whenever  they  find  some 
defect  in  an  existing  institution,  at  once  reject  it  utterly 
without  supplementing  their  negative  criticisms  by 
positive  proposals.  He  is  sufficiently  acute  and  fair  to 
recognize,  behind  what  he  calls  "the  grotesque  Capuchin 
harangues"  of  Fuchs,  "the  eye  of  a  sharp  observer" 
and  "the  countenance  of  a  warm  idealist,  for  whom  true 
justice  is  a  matter  of  the  heart."  Vierhaus  thinks  that 
Fuchs  has  transgressed  the  due  bounds  which  even  the 
most  earnest  controversialist  should  observe,  but  he 
deems  the  substance  to  be  of  more  importance  than  the 
form.  Superficially,  he  seems  to  take  about  the  same 
point  of  view  as  we  do  here,  but  substantially  he  differs 
in  all  respects.  As  I  view  the  matter,  it  is  by  no  means 
true  that  the  sociological  method  lacks  a  positive  con- 
tent, and  I  cannot  agree  with  the  prevailing  opinion 

127  "G"  73,  236. 

128  In  DJZ  1909,  p.  1169. 


§28]  VIEWS  OF  VIERHAUS  137 

which  Vierhaus  also  adopts,  that  the  whole  quarrel  is 
merely  about  particular  legal  provisions,  particular 
juridical  doctrines,  particular  decisions  of  the  courts. 

Vierhaus  may  be  taken  for  a  typical  representative 
of  the  theory  of  subsumption,  for  according  to  him 
"the  legal  concept  and  the  legal  rule  are  to  be  laid  upon 
the  state  of  facts,  so  to  speak,  in  order  to  see  how  far 
they  cover  each  other";  and  further  he  says  that  "the 
function  of  the  judge  is  at  an  end  when  he  has  correctly 
subsumed  the  correctly  ascertained  facts  under  the  cor- 
rect rule,"  while  in  his  opinion  "a  legal  science  operating 
with  an  indefinite  sense  of  justice  not  capable  of  expres- 
sion in  logical  terms  would  not  deserve  the  name  of  a 
science."  We,  however,  are  of  the  opinion  that  we  dare 
no  longer  refuse  a  place  in  the  administration  of  law 
to  the  subjective  sense  of  justice,  even  if  perhaps  it  is 
"hard  to  express  logically,"  by  the  side  of  the  science  of 
logical  concepts.  By  the  way,  what  may  the  £u/x,oi/u>v 
which  Vierhaus  also  speaks  of,  be  if  it  is  not  this 
very  feeling?  We  shall  try  to  discover  whether  it  may 
not  be  possible  to  find  firm  bottom  for  this  sense  of  justice 
in  certain  "realities"  (as  we  have  attempted  to  explain 
above).129  Reading  in  Vierhaus's  article  how,  as  a  result 
of  the  free  decision  doctrine,  the  judge  is  to  be  helplessly 
exposed  to  the  influences  of  economic,  social,  and  politi- 
cal controversies,  instead  of  being  protected  by  "the 
brazen  shield  of  the  law,"  one  is  indeed  tempted  to  reject 
the  new  theories.  However,  it  cannot  be  denied  that 
even  to-day  the  judge  cannot  really  escape  the  necessity 
of  making  up  his  own  mind  regarding  certain  economic 
questions,  as  for  instance  the  propriety  of  "cartels," 
boycotts,  and  the  like.  That  being  so,  it  would  seem 
better  to  face  this  necessity  with  conscious  frankness 
than  to  hide  behind  insincere  scholastic  arguments. 

i2>  Sub  tit.  iii. 


138       GMELIN :  SOCIOLOGICAL  METHOD  [  CH.  Ill 

Vierhaus  himself  advocates  the  balancing  of  interests; 
he  fails  to  realize,  however,  that  this  point  of  view 
cannot  possibly  be  reconciled  with  what  he  calls  "abso- 
lutely the  only  possible  method  of  jurisprudence,  the 
deductive  method  which  has  been  tested  during  two 
centuries."  For  according  to  this  method  the  letter  of 
the  statute  must  be  enforced,  according  to  the  logic  of 
concept  and  deduction,  even  where  a  proper  balancing 
of  interests  cries  out  for  the  opposite  decision.  We  may 
regret  it,  but  we  must  not  obey  Vierhaus's  summons  to 
cease  from  attacking  the  deductive  method  of  adminis- 
tering justice  until  everybody  concedes  that  the  balancing 
of  interests  deserves  the  preponderance. 

It  is  very  pleasant  to  see  how  Hedemann130  treats 
without  bias  the  numerous  blemishes  in  the  form  of 
Fuchs's  comments.  We  cannot  deny  that  this  critic  is 
justified  in  calling  attention  to  a  certain  onesidedness, 
and  the  lack  of  concise,  systematic  presentation  of  the 
views  stated  by  Fuchs.  He  is  also  right  in  noting  that 
Fuchs  has  failed  to  build  up  the  positive  side  of  his 
argument.  Yet,  the  negative  labors  had  to  come  first. 
Doubt  and  criticism  are  the  forerunners  of  knowledge. 
Hedemann  considers  a  particular  merit  of  Fuchs  his 
showing  how  there  is  a  hidden  sociological  element  in 
the  traditional  form  of  judicial  work,  and  says  that  on  the 
negative  side  Fuchs  has  done  "most  excellent"  work, 
that  "his  labors  will  produce  rich  and  lasting  fruit." 

§  29.  Views  of  Dilringer.  Diiringer m  is  of  a  very 
different  opinion.  He  has  no  use  for  those  who  are 
imposed  upon  by  phrases  such  as  "sociological  adminis- 
tration of  justice,"  or  "cryptosociological."  Well,  I 
surmise  that  Hedemann,  myself,  and  a  good  many  other 
judges,  whose  eyes  were  opened  by  Fuchs  regarding 

130  "Archiv  f.  biirgerliches  Recht,"  vol.  34,  pp.  116  seq. 
i"  "Das  Recht,"  1908. 


§29]  VIEWS  OF  DURINGER  139 

"cryptosociology"  and  similar  monstrosities,  will  console 
each  other  for  having  lost  Mr.  Diiringer's  favor.  "Sola- 
men  miseris  socios  habuisse  malorum."  Where  Fuchs 
refers  to  the  assent,  he  has  found  from  many  quarters 
Diiringer  speaks  of  "a  judge  here  and  there  of  some  dis- 
trict court  or  court  of  appeals"  who  is  "delighted  to  see 
some  other  court  of  appeals  or  the  Imperial  Supreme 
Court  catching  it."  Conscious  that  I  myself  do  not  har- 
bor such  malicious  feelings,  I  am  not  capable  of  assuming 
that  they  inspire  other  judges  who  have  the  same  scien- 
tific opinions  as  I,  unless  I  see  proof  that  such  feelings 
exist.  Let  us  wait  and  see  whether  the  public  will  like 
the  way  in  which  Diiringer,  although  expressing  his 
appreciation  of  the  idealistic  and  noble  intentions  of  his 
antagonist,  descends  to  personalities  by  punning  on  his 
name  (Fuchs  =  fox).  Thus  he  calls  him  a  "cunning  fox," 
or  speaks  of  "the  fox  preaching  to  the  ducks."  Again 
he  speaks  of  him  as  "the  little  high  priest  of  free  decision 
from  Karlsruhe,"  and  as  "the  clown  with  all  the  modern 
notions."  In  one  place  he  does  not  even  scorn  to  attack 
him  because  he  is  a  Jew.  I  doubt  whether  he  will  gain 
applause  that  way,  especially  as  so  capable  a  critic  as 
Vierhaus  in  the  article  cited  has  already  suggested 
that  it  would  be  better  if  this  part  of  Diiringer's  paper 
had  never  been  printed. 

As  to  the  merits,  Diiringer's  polemics  do  not  carry 
conviction.  He  has  omitted  the  preliminary  labor  of 
reexamining  the  decisions  of  the  highest  court  which 
Fuchs  has  criticized  because,  as  he  says,  "he  is  not 
inclined  and  has  not  the  time  unofficially  to  wrangle 
about  the  correct  decision  of  judicial  cases."  Although 
he  has  to  make  admissions  on  nearly  every  page,  yet, 
according  to  Diiringer,  there  is  really  no  need  of  doing 
anything  except  to  sing  the  praises  of  things  as  they  are. 
"The  most  important  business  of  the  judge  is  to  adapt  the 


140       GMELIN:  SOCIOLOGICAL  METHOD  [(  H.III 

legal  rule  to  actual  life,"  he  says,  "and  as  a  matter  of  fact, 
that  is  what  is  being  done."  If  that  is  so,  we  need  add 
nothing  but  "Quod  erat  demonstrandum." 

According  to  Diiringer  "the  greatest  of  sociologists" 
is  the  legislator,  and  yet  it  would  seem  to  be  indisputably 
true  that  large  portions  of  the  Civil  Code  are  nothing 
but  scholastic  and  deductive.  The  one  little  drop  of 
sociological  oil  with  which,  as  it  is  said,  the  Code  was 
anointed  hardly  suffices.  To  be  sure,  Diiringer  does  not 
approve  of  two  of  the  worst  decisions,  the  case  relating 
to  the  will  of  the  widow  Schmidt,  and  the  other,  com- 
mented on  in  the  above  discussion.  This  being  so  we 
may  assume  that  a  good  many  other  decisions  would 
not  have  come  up  to  Diiringer's  standard  of  justice  any 
more  than  to  that  of  other  critics  if  he  had  not  disdained 
to  "wrangle"  about  the  correctness  of  the  decisions 
analyzed  by  Fuchs.  Finally,  no  matter  how  he  may  try 
to  justify  himself,  Diiringer's  notorious  question,  "What 
has  sympathy  to  do  with  the  work  of  the  highest  court 
of  appeal?"  will  be  remembered  by  scientific  investigators 
as  a  demonstration  how  lawyers  of  the  school  at  present  in 
the  ascendancy  care  everything  for  formal  logic  and 
nothing  for  the  sense  of  justice,  and  how  they  are  trying 
consciously  to  banish  the  judge's  subjective  sense  of 
justice  from  the  court  room  on  the  plea  that  it  leads  to 
uncertainty  of  the  law. 

From  what  I  have  said  here,  and  for  that  matter  from 
what  I  have  published  before,  it  would  seem  to  be  clear 
that  Diiringer's  appeal  to  the  "esprit  de  corps"  of  the 
German  judges  as  against  the  attacks  of  Fuchs  will  appear 
to  me  and  a  good  many  others  as  nothinglessthandemand- 
ing  "a  sacrifice  of  the  intellect."  I  repeat  that  every  judge 
will  find  a  reexamination  of  the  Supreme  Court  decisions 
criticized  by  Fuchs  exceedingly  instructive  and  productive 
of  good  by  widening  his  outlook  immensely. 


§30]  HELLWIG  AND  BOZI  141 

§  30.  Views  of  Other  Law  Writers.  Hellwig 132  charges 
the  prevailing  manner  of  administering  justice  with 
inclining  towards  formalism  and  lack  of  freedom.  He 
charges  it  with  "forgetting  frequently  that  its  business 
is  not  simply  to  deal  with  logical  categories  or  to  enforce 
principles,"  and  demands  that  the  administration  of  law 
shall  henceforth  "satisfy  the  needs  of  the  present  by 
appreciating  fairly  the  claims  of  contending  interests." 
He  holds  that  decisions  contrary  to  this  principle  are 
contrary  to  the  spirit  of  the  law.  "They  are  unjust. 
They  violate  a  healthy  sense  of  justice,  no  matter  by 
what  amount  of  formal  acumen  they  may  be  defended." 
That  must  be  called  true  sociological  thought  —  if 
Diiringer  will  pardon  this  expression! 

I  beg  to  recall  once  more  Bozi,who  shows  by  truly  scien- 
tific arguments  how  the  prevailing  legal  thought  of  our 
time,  especially  in  criminal  cases,  is  purely  scholastic 
and  formalistic.  Thus  it  has  happened  that  a  murderer 
has  escaped  all  punishment  for  no  reason  but  that  the 
logical  concept  of  "acquittal"  had  to  be  upheld.  He  had 
been  prosecuted  under  section  139,  Penal  Code,  for  not 
reporting  that  a  crime  was  about  to  be  committed,  and 
the  court,  in  dismissing  the  charge,  stated  expressly  that 
this  was  done  so  that  a  new  prosecution  might  be  insti- 
tuted for  murder.  The  Imperial  Court  held  that  the 
two  crimes,  failure  to  prevent  a  murder  and  the  murder 
itself,  were  both  constituted  by  the  same  state  of  facts, 
and  consequently  there  had  already  been  a  prosecution 
based  on  the  same  facts.  Certainly  the  veriest  idolatry 
of  logic!  An  analogous  case  may  be  found  in  the 
decision  where  the  defendant  was  held  guilty  of  repeated 
theft,  although  the  first  "conviction"  of  the  defendant, 
who  was  then  a  minor  and  was  reprimanded  under 
section  55,  par.  1  of  the  Penal  Code,  was  admitted  to 

"2  In  "Der  Tag,"  nos.  240,  241  (October  23,  24, 1909). 


142       GMELIN:  SOCIOLOGICAL  METHOD  [CH.III 

have  been  erroneous.133  Of  course  the  sacredness  of  the 
legal  concept  of  "conviction,"  as  shown  by  the  record, 
had  to  be  preserved  against  mere  substantial  justice! 

Is  this  idolatry  of  the  letter,  is  it  legal  scholasticism 
or  is  it  not?  Fortunate  is  he  who  is  capable  of  consoling 
himself  with  the  adage:  "Tout  est  pour  le  mieux  dans  le 
meilleur  du  monde."  Surely,  those  who  cannot  do  so 
deserve  to  be  laughed  at.  And  right  here  I  may  once 
more  call  to  mind  the  criticism  of  existing  methods  by 
Stampe,  referred  to  above.134 

§  31.  The  Subject  Continued,  It  is  rather  significant 
that  the  "Deutsche  Juristenzeitung",  in  its  special  edi- 
tion on  the  occasion  of  the  jubilee  of  the  Leipzig  Univer- 
sity, deemed  it  worth  while  to  devote  in  that  number135 
not  less  than  three  articles  to  the  modern  reform  move- 
ment. This  is  not  the  place  to  discuss  these  articles  in 
detail,  but  I  should  like  to  quote  the  appreciative  words 
Mitteis  wrote  regarding  the  new  school: 

"Some  'positive'  jurists  may  be  surprised  if  for  the 
present  I  say  merely  that  I  have  found  many  of  these 
charges  excessive  and  unfair.  Out-and-out  'positivists' 
may  have  expected  a  radical  anathema  against  such 
writings.  But  I  cannot,  indeed,  persuade  myself  to  take 
such  a  part.  I  believe  it  is  our  duty  to  take  into  most 
conscientious  consideration  criticisms  which  in  part  at 
least  come  from  very  well  instructed  and  keenly  obser- 
vant members  of  our  profession,  for  possibly  we  may  learn 
therefrom  where  we  are  at  fault.  I  also  believe  that  there 
are  many  things  to  be  corrected."  And  further  on  he 
says:  "What  we  need  is  less  'jus'  and  more  real  jurists." 

Recently,  Professor  Heck  of  Tubingen  has  also  taken 
part  in  the  controversy  regarding  the  sociological 

i«  RGStr  18,  p.  116. 

»«  Sec.  26  supra. 

«s  DJZ  nos.  16,  17  (1909). 

««  DJZ  no.  24  (Nov.  1909). 


§31]  VIEWS  OF  HECK  143 

method.136  He  declares  the  cardinal  error  of  the  deductive 
method  to  be  that  rules  are  deduced  from  concepts 
which  themselves  have  been  formed  to  contain  those 
rules.  This  he  calls  the  method  of  inversion.  I  may 
quote  a  few  sentences  of  Heck  as  strong  endorsements 
of  my  views: 

"Technical  deductive  jurisprudence  covers  up  the 
connection  of  the  law  ar.d  the  interests  of  real  life.  The 
law  has  no  purpose  except  to  serve  such  interests,  to 
delimit  and  balance  the  interests  of  men.  The  principal 
business  of  legal  science  is  to  investigate  the  relations 
between  legal  rules  and  the  condition  of  the  various 
interests.  No  rule  of  law  has  been  understood  and 
explained  until  the  interests  it  represents  l*ave  been  under- 
stood and  explained.  The  method  of  inversion  fails  to 
do  this.  If  we  consider  the  rule  to  be  the  logical  conse- 
quence of  a  conception  containing  a  command,  we  can- 
not at  the  same  time  represent  it  as  resulting  from  a 
process  of  balancing  the  needs  of  the  parties. 
The  attacks  upon  German  legal  science  are  in  many 
respects  unfair  and  excessive,  but  to  a  great  extent  also 
they  are  unfortunately  justified.  The  decisions  which 
Fuchs  deprecates  are,  in  a  considerable  measure,  as  a 
matter  of  fact  erroneous,  and  they  cannot  be  explained 
as  individual  slips  but  must  be  explained  as  consequences 
of  a  faulty  method.  The  greatest  guilt  is  to  be  laid  at  the 
door  of  the  inversive  method.  The  remedy  is  to  be 
sought  principally  in  abandoning  completely  and  as  a 
matter  of  principle  the  method  of  inversion  in  all  its 
forms  and  with  all  its  consequences." 

§32.  Conclusion.  I  believe  I  have  succeeded  in 
proving  one  thing:  it  is  by  no  means  true  that  the  new 
school  lacks  the  capacity  for  positive  work.  Of  course  a 
critical  examination  of  the  prevailing  practice  was 
necessary  and  could  not  fail  in  undermining  faith  in 


144       GMELIN:  SOCIOLOGICAL  METHOD  [CH.  in 

the  exclusive  power  of  logical  syllogisms  to  bring  salva- 
tion. Yet  here  also  the  adage  is  verified:  "Studere  de- 
struit,  studuisse  construit."  As  a  product  of  the  new 
ideas  a  significant  cycle  of  evolution  seems  to  have 
begun.  In  it  legal  science  may  be  called  upon  to  play  a 
leading  part,  provided  it  shall  emancipate  itself  definitely 
from  the  scholastic  lore  of  existing  precedents,  com- 
mentaries and  textbooks,  while  remaining  within  the 
limits  of  positive  law.  Such  emancipation  cannot  but 
have  in  its  train  a  beneficial  effect  on  legislation.  For 
future  statutes  will  have  to  avoid  burdening  the  courts 
with  useless  and  empty  formulas,  and  instead  of  that 
will  aid  them  by  promoting  a  comprehension  of  the  true 
nature  of  legal  rights  and  interests  and  the  relative  values 
to  be  attributed  to  them  —  a  comprehension  also  of  the 
actual  human  relations  with  which  the  legal  rules  are 
dealing,  and  an  insight  into  the  principles  that  guide  the 
intercourse  of  men.137  That  will  also  have  a  stimulating 
influence  upon  the  study  of  the  law,  which  is  now  lan- 
guishing for  lack  of  subjects  of  study  that  are  living 
and  real.  More  and  more  we  must  rid  ourselves  of  the 
old,  formalistic, and  Romanistic  basis  of  legal  study,  we 
must  vigorously  protest  against  the  utterly  unhealthy 
preponderance  of  the  ancient  languages  in  the  prepara- 
tory schooling  of  boys  and  young  men.  The  egoism 
now  cultivated  in  schools  and  universities  should  be 
supplanted  by  an  ethical  sentiment  inspired  by  the  com- 
mon interests  of  society.  The  roads  must  be  made  plain 
for  a  training  of  our  youths  to  be  citizens  of  the  State. 

These  are  wide  horizons  for  our  eyes  to  scan.  Even  if 
at  the  beginning  but  a  small  portion  of  what  we  are  now 

i"  Judges  of  the  present  day,  as  Fuchs  shows  in  "G"  177  and  in  numer- 
ous other  places,  are  mostly  mere  untrained  empirics  in  these  matters, 
because  they  lack  sufficient  preparatory  education.  In  my  day,  at  least, 
the  student  on  leaving  the  university  was  about  in  the  condition  a 
medical  student  would  be  if  he  had  studied  nothing  but  anatomy. 


§32]  CONCLUSION  145 

striving  for  as  a  first  step  should  become  realized,  to  wit: 
a  juster  and  more  truly  popular  administration  of  the 
law  in  harmony  with  the  requirements  of  real  life,  even 
then  the  labors  of  the  sociological  school  would  not  have 
been  performed  in  vain.  And  to  help  toward  that  end 
I  would  fain  invite  the  entire  judiciary. 

The  sociological  method  is  of  the  highest  ethical  sig- 
nificance.138 Calling  upon  lawyers  to  emancipate  them- 
selves from  an  unspeakable  thralldomto  logical  scholasti- 
cism and  to  substitute  therefor  an  interpretation  of  the 
law  in  which  sound  feeling  cooperates,  this  school 
represents  nothing  less  than  an  appeal  to  the  general 
sense  of  justice.  It  saves  the  Court  from  the  spirit  of 
servility  to  the  letter  wrhich  now  predominates  in  the 
administration  of  justice.139  It  rids  him  of  the  burden  of 
abstract  deductions  and  controversies  which  for  the 
most  part  lose  all  meaning  in  the  light  of  the  sociological 
conception.140  It  calls  upon  the  judge  consciously  to 
perform  an  act  of  volition  for  the  purpose  of  attaining 
the  ideal  of  a  just  administration  of  the  law.  It  restores 
to  its  proper  place  the  subjective  feeling  for  justice,  and 
points  out  how  the  ideal  may  be  reached  by  throwing 
light  upon  the  means  of  its  attainment.  It  raises  the 
judge  from  his  present  station  of  a  mere  follower  into 
that  of  a  leader  which  is  rightly  his,  so  that  he  may 
guide  us  on  the  way  toward  a  healthy  conception  of  the 
law  and  its  appropriate  functioning  in  the  daily  business 
of  mankind.  Thus  the  judge  will  become  the  standard-*^ 
bearer  of  legal  evolution. 

us  "G"  233. 

"»  According  to  Hellwig,  in  "Der  Tag"  1909,  nos.  240,  241. 
uo  "G"  23,  228.     Comp.  RGZ  71,  p.  196,  which  is  entirely  in  accord 
with  these  views. 


146  KISS:   EQUITY  AND  LAW  [Cn.IV 


CHAPTER  IV 

EQUITY   AND    LAW:   JUDICIAL  FREEDOM    OF 
DECISION 

BY  GEZA  Kiss1 

§  1.  THE  FUNCTION  OF  THE  COURTS  AND  THE  GROWTH 
OF  LAW.  —  §  2.  HISTORY  OF  LEGAL  HERMENEUTICS: 
ROMAN  LAW.—  §3.  "AEQUITAS"  AND  "LOGICAL  EXPOSI- 
TION."— §4.  HISTORY  CONTINUED:  LATER  ROMAN 
LAW.  —  §5.  THE  MODERN  PROBLEM.—  §6.  THE  PROBLEM 
OF  UNPROVIDED  CASES.—  §7.  FREE  LEGAL  DECISION.— 
;y  §  8.  THE  TRUE  METHOD.  —  §  9.  THE  REASONS  FOR  GAPS 
IN  THE  STATUTES. 

§  1.  The  Function  of  the  Courts  and  the  Growth  of  Law. 
In  discussing  the  proper  method  of  deciding  law  cases, 
it  amounts  to  the  same  thing  whether  we  inquire  into 
the  true  relation  between  "equity"  and  law,  or  whether 
we  ask:  What  is  the  best  method  of  finding  the  law? 
It  is  one  of  the  excellent  results  of  the  movement  for 
free  legal  decision  that  these  exceedingly  important 
questions  have  been  placed  into  the  foreground.2  The 

i  [Professor  of  Law  at  the  Law  School  of  Nagy varad  (Grosswardein) , 
Hungary. 

This  is  a  translation  of  an  address  delivered  before  the  Congress  of 
the  International  Society  of  Legal  Philosophy  at  Berlin,  May,  1910, 
and  published  in  "Archiv  fur  Rechts-  und  Wirtschaftsphilosophie," 
vol.  iii,  pp.  536-550.  The  translator  is  Ernest  Bruncken.] 

*  For  literature  on  the  movement  for  free  legal  decision,  see  especially 
the  data  by  Hedemann,  "Zivilistische  Rundschau,"  in  Archiv  fiir 
Burg.  R.  31,  pp.  115  seq.  and  296  seq. ;  cf.  also:  Oertmann,  "Gesetzes- 
zwang  und  Richterfreiheit"  (Erlangen  (34)  Rektoratsrede,  1909),  and 
bibliography  in  the  notes,  pp.  44  seq.;  further:  Gerland,  "Die  Einwir- 
kung  des  Richters  auf  die  Rechtsentwicklung  in  England,"  in:  Schmidt, 
"Zivilprozessrechtliche  Forschungen,"  Heft  6,  Berlin  and  Leipzig,  1910; 
Gmelin,  "Quousque?  Beitrage  zur  soziologischen  Rechtsfindung," 


§  l  ]  FUNCTION  OF  THE  COURTS  147 

juridical  kernel  of  the  subject,  however,  has  not  yet 
been  sufficiently  examined.  The  real  problem  is  to 
explain  how  the  law  may  at  the  same  time  be  adminis- 
tered and  made  to  grow.  It  is  not  a  matter  of  trying 
to  find  a  certain  criterion  for  the  proper  boundary  line 
between  strict  adherence  to  the  formulated  rule  ("law") 
and  the  freedom  of  judicial  decision  ("equity");  and 
still  less  of  establishing  a  golden  rule  for  the  art  of  inter- 
pretation,3 and  of  reducing  this  to  a  single  and  funda- 
mental philosophical  principle.4 

To  say  the  least,  it  is  a  sign  of  excessive  optimism  to 
esteem  the  value  of  such  a  theory  highly ;  and  still  more 
so,  to  expect5  "to  find  by  means  of  it  the  Archimedean 
point  from  which  all  concrete  cases  may  be  decided  in 
an  objectively  satisfactory  manner."  It  is  time  to 
realize  that  questions  like  these  do  not  at  all  touch  the 
core  of  our  problem.  An  inquiry  dealing  in  an  exact 
manner  with  real  matters  of  law  should  confine  itself 
to  an  explanation  of  how  it  may  be  possible  that  by  the 
adjudicatory  function  of  the  courts  law  can  be  created.6 

Hannover,  1910;  Sinzheimer,  "Die  soziologische  Methode  in  der  Privat- 
rechtswissenschaft,"  Munich,  1909;  Rundstein,  "Freie  Rechtsfindung 
und  Differenzierung  des  Rechtsbewusstseins,"  Archiv  Burg.  R.  34,  pp. 
1-40;  Meumann,  "Observations  sur  le  systeme  de  droit  prive,"  Geneve, 
1909  (cf.  my  review  in  Zentralb.  R.  W.,  Nov.  1909);  Cruet,  "La  Vie  du 
droit  et  1'impuissance  des  lois"  (Bibliotheque  de  philosophic  scientifique) 
1910. 

'As  for  instance:  1.  Stammler's  "social  ideal"  according  to  Kant 
("Die  Lehre  vom  richtigen  Recht,"  Leipzig,  1902,  pp.  603  seq.;  further: 
"Wesen  des  Rechts  und  der  Rechtswissenschaft,"  in:  Hinnebergs 
"Kultur  der  Gegenwart,"  ii,  8,  p.  42  seq.).  2.  Hegel's  and  Kohler's 
"standard  of  progressive  culture,"  as  formulated  by  Briitt  ("Die  Kunst 
der  Rechtsamvendung,"  Berlin,  1907,  pp.  112,  121  seq.,  129  seq.;  cf. 
Kohler,  "Moderne  Rechtsprobleme,"  1907;  and  recently:  "Lehrbuch  der 
Rechtsphilosophie,"  Berlin  and  Leipzig,  1909,  pp.  2,  57  seq.  [vol.  xii 
in  this  Series].  3.  Jhering's  concept  of  "law  as  a  means  to  an  end" 
[see  vol.  v  of  this  Series];  in  Van  der  Eycken,  "Methode  positive  de 
1'interpretation  juridique,"  Paris  and  Brussels,  1907,  pp.  133  seq. 

*  Comp.  especially  Rumpf,  "Gesetz  und  Richter,"  Berlin,  1906. 
5  Thus,  Briitt,  "Die  Kunst  der  Rechtsanwendung,"  p.  124. 

•  First  shown  especially  by    Kohler,   "Die  schopferische  Kraft    der 
Jurisprudenz,"  in   Jhering's  Jahrbiicher,  25,  pp.  262  seq.     Stemberg's 


148  KISS:   EQUITY  AND  LAW  [Cn.IV 

It  should  not  bother  with  the  principles  themselves  of 
this  function.  For  it  is  universally  admitted  that  the 
interpretation  of  the  law  is  both  an  art  and  a  science,  and 
also  that  it  does  not  follow  that  one  who  knows  the 
principles  also  knows  how  to  exercise  the  art.7 

What  is  needed  is  rather  an  accurate  examination  of 
the  manner  in  which  the  decisions  of  the  courts  and  the 
science  of  jurisprudence  take  part  in  making  the  law  grow 
and  change.  The  results  of  interpretation,  the  fruits  of 
judicial  activity,  should  be  analyzed  in  detail  in  order  that 
we  may  gain  a  scientific  comprehension  of  their  nature. 

In  this  way  we  shall  necessarily  arrive  at  the  con- 
ception of  "aequitas,"  which  means  those  principles 
of  unwritten  law  which  all  fruitful  interpretation  must 
call  to  its  aid.  The  relation  of  law  to  equity  is  nothing 
but  the  relation  of  formulated  law  to  the  unwritten 
principles  just  mentioned,  which  are  contained  in  the 
law  as  it  actually  finds  expression  in  the  conduct  of  men. 

I  may  be  permitted  briefly  to  describe  the  historical 
development  of  this  idea  in  connection  with  the  history 
of  the  traditional  principles  of  legal  hermeneutics.8 

"Allgemeine  Rechtslehre"  (Sammlung  Goeschen,  Heft  169,  vol.  1,  pp.  123 
seq.,  and  particularly  pp.  120  seq.)  should  be  specially  noted;  prob- 
ably on  account  of  its  modest  tone,  this  work  has  not  been  considered 
as  it  merits  in  later  writings  on  the  movement  for  free  legal  decision. 

'  Regelsberger,  "Pandekten,"  1,  §§36,  145;  also:  "Streifzuge  im 
Gebiet  des  Zivilrechts"  (sep.  repr.  from  "Festgabe  der  Gottinger  Juris- 
tenfakultat  fiir  R.  v.  Jhering,"  Leipzig,  1892,  pp.  16  seq.;  comp. 
also  Savigny,  "System  des  heutigen  romischen  Rechts"  (cited  from 
first  edition,  1840),  vol.  1,  p.  211:  "Interpretation  is  an  art,  and  it  is 
true  enough  that  excellent  models  help  much  to  train  in  it,"  but  "what 
has  been  offered  as  the  theory  of  it  is  of  a  much  inferior  kind.  It  is 
important,  therefore,  not  to  deceive  oneself  regarding  the  value  of 
any  theory  of  the  method  of  applying  the  law  —  even  the  best  theory." 
Cf.  further:  Pfaff- Hofmann.  "Kommentar  zum  ost.  allg.  BGB,"  vol.  1 
(1877),  166  seq.;  Hartmann,  "Der  Zivilgesetzentwurf,  das  Aequitats- 
prinzip  und  die  Richterstellung,"  in  Archiv  Ziv.  Praxis,  vol.  37,  405 
seq.;  Kraus,  "Die  leitenden  Grundsatze  der  Gesetzesinterpretation," 
Grunhut's  Zeitschrift,  vol.  32,  613  seq. 

"  The  importance  of  a  history  of  traditional  hermeneutics,  "of  which 
we  are  in  great  need  in  these  days  of  discussions  about  juridical  method," 


§2]  LEGAL  HERMENEUTICS  149 

§  2.  History  of  Legal  Hermeneutics :  Roman  Law. 
In  Roman  law,  the  relation  between  "jus"  and  "aequitas" 
is  expressed  by  the  term  "interpretatio."  "We  are 
accustomed  to  understand  by  the  term  'interpretation' 
that  function  of  the  mind  which  attempts  to  find  the 
meaning  of  a  legal  rule,  especially  a  written  rule;  an 
endeavor  to  discover  the  intention  of  its  author.  The 
manner  of  'interpretatio,'  however,  which  is  ascribed 
to  the  Roman  jurisprudents  was  not  of  a  character  so 
exclusively  passive,  as  we  might  say.  Rather  it 
included  the  task  of  adding  to  the  written  law  what 
remained  still  unwritten,  to  supplement  the  former 
by  the  latter.  They  were  intermediators,  so  to  speak, 
between  the  letter  of  the  statute  and  real  life,  and  as 
such  it  was  their  business  not  to  stick  to  the  literal  con- 
tents of  the  statute  and  the  original  intention  of  the 
legislator,  but  to  adapt  the  letter  to  the  needs  of  actual 
life  and  to  make  the  application  of  the  statute  prac- 
ticable."9 

The  interesting  thing  in  this  is,  for  us,  the  light  it 
throws  upon  legal  method.  In  the  science  of  legal 
sources  it  is  formally  recognized  that  legal  science  may 
actually  formulate  new  law,  and  this  fact  is  expressed 
by  a  specific  concept.  For  the  result  of  such  "inter- 
pretatio" is  precisely  what  is  called  "jus  non  scriptum" 
in  the  specifically  Roman  sense.  This  form  of  unwritten 
law  consists  of  the  supplementary  matter,  the  intellec- 
tual surplus  so  to  speak,  which  was  added  to  the  written 
law  (meaning  the  text  of  statutes)  by  the  interpre- 
tative activity  of  the  "prudentes." 

Accordingly,  the  concept  "unwritten  law"  is  iden- 
tified by  Pomponius  with  that  of  "lawyers'  law": 

is  properly  emphasized  by  Sternberg  (in  Zentralb.  R.  W.  vol.  26,  p.  65) ; 
in  this  place,  to  be  sure,  we  can,  for  lack  of  space,  give  nothing  but  the 
most  sketchy  synopsis. 

8  Puchta,  "Kursus  der  Institutionen,"  vol.  1  (4.  edition,  1853),  p.  316. 


150  KISS:   EQUITY  AND  LAW  [CH.IV 

"Haec  disputatio  et  hoc  jus,  quod  sine  scripto  venit 
compositum  a  prudentibus,  propria  parte  aliqua  non 
appellatur,  .  .  .  sed  communi  nomine  appellatur  jus 
civile."10 

Still  more  distinctly  it  is  declared  in  the  next  para- 
graph that  this  "jus  civile,"  which  properly  means  the 
"jus  non  scriptum"  in  question,  had  its  origin  in  the 
creative  power  of  "interpretatio" : 

"Lege  XII  tabulorum  ex  his  fluere  coepit  jus  civile. 
Omnium  tamen  harum  .  .  .  interpretandi  scientia 
apud  collegium  pontificum  erat  .  .  .  et  fere  populus 
annis  prope  centum  hac  consuetudine  usus  est."11 

And  finally:  ....  proprium  jus  civile  quod 

sine  scripto  in  sola  prudentium  interpretatione  con- 
sistit."12 

Ehrlich's  enduring  merit  is  to  have  emphasized 
strongly  that  in  these  places  the  concept  of  the  "jus 
civile"  proper  has  been  defined  "in  a  manner  that  cannot 
be  misunderstood."13  From  this,  then,  we  learn  that 
the  specifically  Roman  idea  of  the  unwritten  law  was 
that  it  consisted  "simply  of  the  interpretations  of  the 
jurisprudents."  According  to  the  Roman  view,  it  is 
nothing  more  than  the  result  of  interpretation  of  the 
written  law. 


"Dig.  7,  2,  2,5. 

11  Dig.  7,  2,  2,  6. 

"Dig.  7,2,2,  12. 

"Ehrlich,  "Beitrage  zur  Theorie  der  Rechtsquellen,"  I.  Teil.  Das 
"jus  civile,  jus  publicum,"  etc.  Berlin  1902,  pp.  1  seq.  But  cf.  also: 
Jhering,  "Geist  des  romischen  Rechts,"  passim;  Kriiger,  "Geschichte 
der  Quellen  und  Literatur  des  romischen  Rechts"  (1886),  pp.  26  seq.; 
Karloiva,  "Romische  Rechtsgeschichte"  (1885),  pp.  454  seq.;  Joers, 
"Romische  Rechtswissenschaft  zur  Zeit  der  Republik  bis  auf  die  Cato- 
nen"  (1888),  pp.  71  seq.;  Sohm,  "Institutionen"  (13.  edition,  1908),  pp.  8 
seq.  (The  last  two  named  begin  to  show  the  influence  of  Ehrlich.)  See 
also  Pernice,  "Zum  romischen  Gewohnheitsrecht,"  Zeitschrift  der 
Savigny-Stiftung  fiir  Rechtsgeschichte,  Romische  Abteilung  20,  p.  151; 
and  Lambert,  "La  Fonction  du  droit  civil  compare,"  1903,  pp.  694  seq. 


§2]  LEGAL  HERMENEUTICS  151 

As  a  matter  of  fact,  this  notion  is  of  Greek  origin.14 
It  occurs  especially  in  Aristotle,  whose  vo/uos  aypa<£os 
means  also  the  lawyers'  law  formulated  by  "equitable" 
(oriels)  decisions.15  It  is  very  important,  in  this  con- 
nection, to  understand  the  conception  of  c-metKeta,  the 
Greek  equivalent  of  "aequitas,"  which  is  nothing  less 
than  "the  foundation  of  the  whole  system  of  law."  In 
the  meaning  of  Aristotle,  it  is  "the  law  correctly  under- 
stood and  interpreted,"  such  as  is  always  aimed  at  by 
positive  law.  It  also  forms  a  principle  of  interpretation, 
for  the  positive  law  must  be  interpreted  and  conceived 
in  accordance  with  e-n-uiKua.  The  written  law  (vo/ios 
eyypa^os)  is  the  literal  text  of  the  statute,16  the  unwritten 
law  means  the  perfect  meaning  of  it  which  cannot  be 
expressly  set  forth  for  each  individual  case. 

To  explain  this  meaning,  Aristotle  says  "that  the 
'equitable'  is  indeed  'just'  but  not  equivalent  to  the 
'legal.'  It  is  rather  an  improvement  on  the  merely 
legally-just.  The  reason  is  that  every  statute  speaks 
in  general  terms,  yet  many  things  cannot  be  expressed 
generally.  Therefore,  in  matters  where  one  is  com- 
pelled to  speak  generally  but  is  not  able  to  do  so  cor- 
rectly, the  statute  regards  only  the  majority  of  cases, 
although  well  knowing  that  this  is  an  error.  Nor  is 
this  manner  of  speaking  improper  on  that  account,  for 
the  fault  is  not  in  the  statute  or  the  legislator,  but  in  the 

>4  Cf.  Ulpianus,  Digest  1,  1,  6,  1.:  "Hoc  igitur  jus  nostrum  constat 
aut  ex  scripto  aut  sine  scripto  .  ut  apud  Graecos:  fuv  v^iav  ol 

/j^v  eyypa<poi  ol  8£  &ypa<f>oi  "•  similarly,  Inst.  1,  2,  3. 

«  Hirzel,  "A-ypa^os  v6juoj.  (Abhandl.  der  philologisch-historischen 
Classe  der  Konigl.  Sachsischen  Gesellschaft  der  Wissenschaften  20,  1. 
Leipzig  1900);  same,  "Themis,  Dike  und  Verwandtes,"  Leipzig  1907, 
pp.  359  seq.;  Cathrein,  S.  J.,  "Recht,  Naturrecht,"  etc.  (1901),  pp.  101- 
102;  also  Voigt,  "Das  jus  naturale,"  vol.  1,  pp.  127,  175,  529,  and 
vol.  4,  p.  372;  Pernice,  "Parerga,"  Z.  Sav.  f.  Rg.  22  (1901).  pp.  82-95; 
Kraus,  Griinhut's  Zeitschrift,  32,  p.  613. 

»•  Cf.  Aristotle,  "Rhetoric,"  A.  10.  1368  b7,  A.  13.  1373  b4;  and  espe- 
cially "Nicomach.  Ethics,"  E  14,  1137. 


152  KISS:    EQUITY  AND  LAW  [Cn.IV 

nature  of  the  thing  itself."  Then  he  adds:  "Now, 
where  the  statute  reads  generally  but  a  case  comes  up 
that  will  not  fit  into  these  general  expressions,  one 
proceeds  quite  properly  if,  wherever  the  legislator  has 
failed  to  provide  therefor  and  by  his  general  expression 
has  committed  a  mistake,  one  corrects  the  omission 
in  such  a  manner  as  the  legislator  himself  would  speak 
and  legislate  if  he  were  present  to  witness  the  case." 

Thus  equity  is  "an  improvement  of  the  statute  where 
it  commits  a  mistake  by  reason  of  its  general  expression." 
"This  also  is  the  reason  why  all  things  cannot  be  regu- 
lated by  statute;  for  about  some  things  it  is  not  pos- 
sible to  enact  a  law."  17 

What  the  Greeks  thus  call  eTrtei/ces  SiWov  is  equivalent  to 
the  Roman  "aequitas,"  the  foundation  of  the  celebrated 
'interpretatio  jurisprudentium,"  which  according  to 
Pomponius  is  identical  with  "jus  non  scriptum." 

§3.  " A eqtiitas"  and  "Logical Exposition."  "Bynoneof 
its  brilliant  specific  maxims  has  the  Roman  law  acquired 
so  strong  a  title  to  immortality  as  by  the  manner  in 
which  it  has  defined  upon  principle  its  own  relation 
toward  equity."  These  significant  words  of  Kipp 18 
are  at  the  same  time  an  excellent  characterization  of 
the  Roman  method  of  legal  exposition.  For  that 
method  is  based  on  the  principle  of  equity,  expressed 
in  the  sources  (like  the  ciricuces  of  Aristotle)  by  the  term 
"aequitas"  ("aequum  et  bonum,  aequum,  bona  fides"). 
Equity  is  the  necessary  presupposition  of  correct  inter- 
pretation. It  demands  a  treatment  that  is  appropriate 
to  the  circumstances  of  each  case.  The  law  is  equitable 
when  every  element  in  the  state  of  facts  that  is  entitled 
to  be  considered  is  actually  so  considered.19  The  law 

i'  "Nicomach.  Ethics,"  loc.  cit.  chap.  14. 

>s  "Geschichte  der  Quellen  des  romischen  Rechts." 

«  Windscheid.  "Lehrbuch  der  Pandekten,"  vol.  1,  §  28,  p.  119. 


§3]  EQUITY  AND  LOGIC  153 

requires  to  be  interpreted  and  applied  according  to  the 
demands  of  equity.  Equity,  therefore,  is  the  basal 
principle  of  legal  interpretation.20  Without  "aequitas," 
i.e.  without  a  knowledge  of  the  requirements  growing 
out  of  the  circumstances  of  the  case  to  which  the  law 
is  to  be  applied,  it  is  impossible  to  find  the  true  inten- 
tion of  the  law  ("mens  juris,  constitutionis  ratio,  sen- 
tentia  legis,"  etc.). 

It  follows  that  it  is  the  part  of  "aequitas"  constantly 
to  supplement  and  at  the  same  time  improve.  It  is 
quite  true  that  any  rule  of  law  in  question  has  some- 
thing added  to  it  by  such  equitable  consideration  of 
"all  the  surrounding  circumstances,"  because  its  literal 
or  abstractly  logical  sense  is  not  capable  of  furnishing 
a  specific  norm  for  all  specific  cases.  Something  is  read 
into  the  law  already  formulated  which  cannot  be  found 
in  the  literal  text  or  its  sense  according  to  formal  logic.21 
"Aequitas,"  therefore,  as  a  principle  of  interpretation, 
excludes  both  a  strict  adhering  to  the  letter  of  the 
statute  and  what  is  called  "logical  exposition."  As  is 
said  by  Celsus:  Even  one  who  acts  "in  fraudem  legis" 
may  not  offend  against  the  letter  of  the  statute,  and  yet 
"salvis  verbis  legis  sententiam  ejus  circumvenit." 22 
For  this  reason  a  merely  grammatical  interpreta- 
tion may  be  held  a  malicious  perversion  of  the  law 
/'Callidum  versutumque  jus,  calumnia,  nimis  callida 

20  Kipp,  loc.  cit.  p.  7,  note  13,  and  in  Pauly-Wissowa' s  "Realen- 
cyclopaedie."  Similarly  Celsus,  Dig.  50,  7,  90:  "in  omnibus  quidem 
maxime  in  jure  aequitas  spectanda  est,"  and  especially  Dig.  1,  1,  1: 
"jus  est  ars  boni  et  aequi."  Regarding  H.  Kriiger's  paper  ("Die 
humanitas"  etc.,  Z.  Sav.  f.  Rg.  19,  pp.  6-57,  in  which  "aequitas"  is 
confused  with  concepts  like  "pietas"  and  "humanitas,"  cf.  Kipp, 
"Geschichte,"  etc.,  3.  ed.,  §  2,  note  27,  pp.  9-10. 

2l  Cf.  C.  1,  14,  1,  where  Roman  " inter pretatio"  is  correctly  under- 
stood as  intermediary  between  written  law  and  "aequitas";  "inter 
aequitatem  jusque  interposita  interpretatio" ;  see  also:  Cicero,  "De 
republica,"  v.  2:  "aequitatis  explanatio,  in  qua  juris  erat  interpretatio." 

«  Dig.  1,  3,  29.  —  Comp.  also  Paulus. 


154  KISS:   EQUITY  AND  LAW  [CH.IV 

interpretatio,  summa  injuria,"  etc.23  The  same  thing  is 
true,  however,  of  logical  exposition  after  the  manner  of 
modern  scholastic  jurisprudence.  It  is  quite  possible 
that  such  interpretation 24  may  be  incompatible  with 
the  demands  of  equity  no  less  than  the  driest  sort  of 
literalism.  For  the  Roman  jurist  was  not  satisfied  with 
the  result  of  logical  exposition  merely  because  it  was 
logical  or  in  accordance  with  the  original  intention  of  the 
legislator.25  "Propter  utilitatem  strictam  rationem 
insuper  habemus,"  says  Papinian  smartly,26  meaning 
thereby:  we  leave  the  strict  rule  aside  when  it  does  not 
help  to  attain  the  true  object  aimed  at. 

Of  course,  all  this  does  not  mean  such  arbitrary  sub- 
jectivity as  is  advocated  by  the  modern  movement  for  free 
legal  decision.27  The  juridical  peculiarity  of  Roman 
"aequitas"  lies  rather  in  this,  that  it  shows  the  possibility 
of  a  method  which  considers  itself  bound  by  the  statute 
and  yet  remains  capable  of  further  developing  the  law. 

§  4.  History  Continued:  Later  Roman  Law.  Unfor- 
tunately, the  manner  in  which  legal  hermeneutics  have 
"developed"  in  later  times  constitutes  nothing  better 
than  a  degeneration  of  this  discovery  of  the  Roman 
law.  For  the  absolutism  of  the  later  Empire  caused 
a  radical  change.  Imperial  omnipotence  reserved  to 
itself  the  interpretation  of  the  law:  "Inter  aequitatem 

»  Significantly  especially  in  Cicero,  "Brutus,"  145,  198;  "De  orat.," 
i,  292;  "Pro  Caecilio,"  57,  65,  77;  "Pro  Mur."  27;  "De  officiis,"  i.  10. 
33,  etc. 

»<  Roman  terms  for  this  (see  Kipp,  loc.  cit.):  "stricta  ratio"  (Dig.  11, 
7,  43);  "strictum  jus"  (Fig.  5,  3,  50,  1;  3,  5,  30;  23,  2,  67,  1);  "rigor 
juris"  (Dig.  40,  5,  24,  10);  "suptilitas  juris"  (Dig.  39,  5,  25);  "suptilis 
ratio"  (Dig.  8,  3,  11);  or  simply  "jus"  (Dig.  15,  1,  32  pr.,  39.  3,  2,  6). 

16  Regarding  the  value  attached  to  the  "intention  of  the  legislator" 
by  Roman  jurists,  cf.  Kohler's  excellent  compilation  in  Griinhut's 
Zeitschrift,  vol.  13,  pp.  1  seq.,  note  2.  —  Comp.  also  on  this  point, 
Regelsberger,  "Pandekten,"  §  35,  p.  144,  note  10;  Austin,  "Jurispru- 
dence," vol.  2,  1027;  Kipp,  loc.  cit.  p.  7,  note  17. 

"Dig.  11,  7,  43. 

«'  C.  7,  14,  7;    cf.  also  Const,  de  Conf.  Dig.  c.  18. 


§4]  LATER  ROMAN  LAW  155 

j  usque  interpositam  interpretationem  nobis  soils  et 
oportet  et  licet  inspicere." 28 

This  proposition  proved  exceedingly  injurious  for  the 
manner  in  which  the  Glossators  understood  the  matter. 
Their  firm  belief  in  the  absolute  authority  of  the  Jus- 
tinian compilations  of  the  law,  their  lack  of  historical 
knowledge,  their  scholastic  habit  of  mind,  and  the  exeget- 
ical  manner  of  treating  their  subjects  29  all  kept  them 
from  independently  penetrating  the  problem  of  the 
application  of  the  law,  just  as  they  were  kept  thereby 
from  an  unbiased  consideration  of  the  leading  prin- 
ciples of  interpretation.  In  regard  to  this  theoretical 
problem,  as  regarding  everything  else,  the  statements 
found  in  the  Corpus  Juris  were  treated  like  obligatory 
rules  and  incontestable  truths.  Thus  in  administering 
the  law  nothing  was  considered  legitimate  except  a 
reference  of  the  matter  to  some  citation  in  the  Corpus 
Juris  ("authentic  interpretation"),  and  nothing  left  to  the 
judge  but  a  purely  declaratory  interpretation.  Accord- 
ingly the  judicial  function  consisted  in  nothing  more 
than  the  preservation  and  scientific  exploitation  of  the 
law  as  it  actually  stood.30  This  soon  gave  rise  to  the 
method  of  supplying  new  rules  of  law  out  of  the  existing 
system  of  legal  rules. 

The  first  scientific  and  systematic  treatment  of  this 
rule  is  found  in  Donellus.31  His  theory  is  properly  the 

»•  Tendencies  in  that  direction  may  be  found  in  Dig.  15,  1,  32,  pr. ; 
Dig.  39,  3,  2,  5;  in  this  connection,  Windscheid,  "Pandekten,"  vol.  1, 
§  28,  note  4,  intimating  that  "the  attitude  of  the  jurist  used  to  be  much 
more  independent  than  to-day."  Contra,  Kipp,  loc.  cit.;  cf.  also  Pauly- 
Wissawa,  loc.  cit. 

"Brie,  "Gewohnheitsrecht,"  vol.  1,  96-97. 

*•  Cf.  Stintzing,  "Geschichte  der  deutschen  Rechtswissenschaft,"  vol.  1 
(1880),  pp.  102  et  seq.;  Landsberg,  "Die  Glosse  des  Accursius,"  p.  25: 
"the  purely  deductive  and  strictly  logical  procedure  which  may  be  called 
particularly  'dialectics'";  cf.  also  Brie,  loc.  cit.;  further,  Folk,  "Die 
Analogic  im  Recht,"  1906,  24  et  seq. 

si  "Comentarii  de  jure  civili,"  lib.  1,  c.  13,  §  1.  seq. 


156  KISS:   EQUITY  AND  LAW  [Cn.IV 

foundation  of  that  traditional  and  accepted  "logical 
exposition"  which  was  later  developed  especially  by 
Savigny.  In  sharp  contrast  to  the  Roman  idea  of 
"aequitas"  this  theory  sanctions  the  notion  that  there 
are  no  omissions  in  the  positive  law,  that  the  original 
and  unchanged  intention  of  the  legislator  is  to  be  sought, 
and  further,  that  for  applying  the  law,  formal  dialectic 
logic  suffices.32 

This  method  was  especially  followed  by  the  Law  of 
Nature  school.  In  the  face  of  their  own  fundamental 
principle,33  even  the  most  radical  protagonists  of  the 
Law  of  Nature  advocate  the  identical  logical  method 
which  we  find  among  the  glossators  and  commentators. 

The  historical  school  of  jurists  likewise,  as  far  as  our 
present  problem  is  concerned,  did  nothing  more  than 
continue  the  doctrine  of  logical  and  pragmatical  exposi- 
tion. It  was  but  lately  that  the  traditional  doctrine  was 
elaborated,  by  Savigny  and  his  eminent  followers,  into  a 
complete  theoretical  system.  "The  days  of  this  school 

8»  Among  the  immediate  successors  of  Donnellus  (1527-1591)  may 
be  named  especially:  Forster,  " Inter pres  sive  de  interpretation  juris 
libri  duo,"  lib.  2,  c.  12  seq.  (cited  from  Otto,  "Thesaurus  juris  Romani," 
vol.  2,  1733).  —  In  regard  to  the  hermeneutics  of  the  canon  law,  which 
on  the  whole  has  the  same  result,  cf.  Reiffenstuel,  "Jus  canonicum 
universum,"  vol.  1,  passim;  and  Schulte,  "Geschichte  der  Quellen  und 
Literatur  des  canonischen  Rechts,"  vol.  1  (1875),  212-220. 

33  According  to  the  principles  of  this  school,  the  law  of  nature,  con- 
stituting the  highest  authority,  ought  to  be  acknowledged  at  least  as 
subsidiary  law.  Obviously  the  method  of  interpretation  appropriate 
to  this  point  of  view  would  be  one  in  which  the  formulated  law  is  supple- 
mented from  the  outside,  by  means  of  the  law  of  nature  (cf.  Pfaff- 
Hofmann,  "Comment.,"  vol.  1,  194  seq.)-  In  practice,  however,  this 
theory  is  never  seriously  applied.  Even  the  most  radical  adherents 
of  the  theory,  when  they  come  to  deal  with  interpretation  in  detail, 
present  the  same  "dialectical  method"  we  found  above.  Cf.  Pufen- 
dorf,  "De  jure  rationali  et  gentium,"  vol.  5,  12;  alsoZeiller,  "Comment, 
zum  6st.  BGB,"  ad.  §§6-7,  who  does  not  only  defend  all  the  fundamental 
principles  of  the  traditional  method  but  even  calls  the  application  of  the 
famous  section  7  "exceedingly  problematical"  (loc.  cit.  vol.  1,  p.  66); 
cf.  further,  Winivarter,  "Das  osterreichische  biirgerliche  Recht,"  vol.  1 
(1831),  p.  82,  note  2.  —  See  also  Cluck,  "Pandekten,"  vol.  1,  205-301, 
and  Rotleck-Welcker,  "Staatslexikon,"  517-518. 


§4]  LATER  ROMAN  LAW  157 

are  numbered,"  says  Gmiir,34  but  in  the  textbooks  of 
the  Civil  Law  and  of  the  German  Givil  Code,  as  well  as 
generally  in  systematic  treatises  on  private  law,  its 
teachings  still  figure  as  the  accepted  doctrine.35  How- 
ever, what  we  have  said  above  shows  plainly  enough 
that  this  is  not  the  Roman  manner  of  applying  the  law 
but  merely  a  degenerate  form  thereof.  Such  formal 
logic  was  alien  to,  nay,  even  despised  by  Roman  jurists. 
It  is  the  product  of  a  development  which  gradually 
deviated  from  the  fundamental  idea  of  the  Roman 
administration  of  the  law. 

§  5.  The  Modern  Problem.  No  doubt  can  exist, 
therefore,  that  primarily  a  judicial  practice  which  cor- 
responds more  closely  to  the  needs  of  actual  life  may 
be  obtained  by  a  return  to  the  Roman  principle. 

It  must  not  be  a  question  of  working  toward  a  "more 
independent  position"  of  the  judge.  "There  is  so  much 
talk  about  the  difference  existing  between  the  functions 
of  the  modern  and  the  Roman  lawyer  as  regards  the 
evolution  of  the  law.  It  is  claimed  that  the  work  of  the 
latter  constituted  one  of  the  sources  of  the  law,  while 
this  function  is  denied  to  the  labors  of  the  former.  In 
this  there  is  at  least  some  exaggeration,  against  which 
a  protest  should  be  raised,  because  it  carries  with  it 
certain  practical  dangers."36  The  true  problem  is  merely 
that  of  applying  better  methods  in  the  use  of  powers 
which  the  judge  already  possesses. 

»4  Gmiir,  "Die  Anwendung  des  Rechts,"  p.  9. 

« Among  many,  cf.  especially:  Windscheid,  loc.  cit.  §§22  et  seq.; 
Thai,  "Einfiihrung,"  etc.;  Regelsberger,  loc.  cit.  §35;  Dernburg,  "Pan- 
dekten."  —  On  recent  works  in  Austria,  cf.  Pfaff-Krainz-Ehrenzweig, 
"System  des  osterreichischen  allgemeinen  Privatrechts,"  vol.  1  (4  ed., 
1905),  pp.  42  seq.  —  For  French  literature,  comp.  Laurent,  "Cours  ele- 
mentaire,"  p.  15:  "On  ne  doit  jamais  separer  1'esprit  de  la  loi  de  son 
texte  .  .  .  le  texte  et  1'esprit  .  .  .  c'est  une  seule  et  meme 
chose:  la  volonte  du  legislateur." 

»•  Regelsberger,  "Streifziige,"  p.  16. 


158  KISS:    EQUITY  AND  LAW  [Cn.IV 

Like  the  Roman  jurists,  so  should  we  also  formulate 
and  explain  scientifically  the  method  which  makes 
possible  the  kind  of  judicial  law  described  above,  which 
must  necessarily  arise  in  the  course  of  administering 
justice.  We  ought  not  "to  represent  as  something 
theoretically  impossible  that  which  practically  arises 
in  a  continuous  current  and  is  found  quite  indispen- 
sable." 37 

§  6.  The  Problem  of  Unprovided  Cases.  This  manner 
of  putting  the  question  takes  us  back  unavoidably  to 
the  concept  of  cirietKcia  or  "aequitas."  "The  equitable 
is  an  improvement  of  the  law  where  that  commits  a 
mistake  on  account  of  its  general  form  of  expression"; 
for  "all  things  cannot  be  regulated  by  law  because, 
regarding  some  things,  it  is  impossible  to  enact  laws."38 

In  other  words:  the  problem  of  how  to  apply  the  law 
cannot  be  solved  scientifically  except  by  considering 
the  problem  of  unprovided  cases. 

One  may  well  find  the  beginning  of  a  scientific  appre- 
ciation of  this  matter  in  the  celebrated  work  of  Geny, 
"Methode  d'interpretation  et  des  sources  en  droit  prive 
positif."39  The  merit  of  this  work  consists  in  this, 
that  the  author  for  the  first  time  strongly  emphasized 
and  systematically  utilized  the  scientific  possibility  of 
unprovided  cases. 

He  failed,  however,  to  expound  in  detail  the  leading 
thoughts  of  his  theory  or  to  emphasize  them  with  con- 
scious appreciation  of  their  consequences.  Drawing 
too  sharp  a  dividing  line  between  "passive  interpretation" 
and  "supplying  of  omissions,"  he  tries  to  explain  the 

>7  Aristotle;  see  notes  16  and  17  supra. 

»»  Kipp,  note  in  Windscheid's  "Pandekten,"  vol.  1  §28,  §  121. 
'  "  Rumpf  (loc.  cit.  note  3),  p.  21,  correctly  suggests  that  the  success 
of  this  eminent  and  broadly  conceived  work  was  at  the  same  time,  in  no 
small  part,  a  success  of  German  jurisprudence.  Not  to  mention  older 
standard  works,  comp.  especially  Ehrlich,  "Liicken  im  Recht,"  in: 
Burian's  Juristische  Blatter,  vol.  17,  417  seq. 


§6]  UNPROVIDED  CASES  159 

former  function  exclusively  in  the  narrow  manner  of  the 
accepted  doctrine.  For  the  second  function,  however, 
he  allows  an  exceedingly  "free"  "libre  recherche  scien- 
tifique."  40  That  means,  he  forgets  that  the  demarca- 
tion drawn  by  him  cannot  be  carried  out  in  practice. 
After  all,  a  rule  is  never  plain  and  circumstantial  but 
when  it  fits  in  every  respect  the  case  to  be  decided; 
in  all  other  instances  it  is  necessarily  doubtful  and  full 
of  omissions.  The  error  of  Geny  consists  in  this,  that 
in  connection  with  unprovided  cases  he  thinks  only  of 
technical  errors  in  the  draftsmanship  of  a  statute,  obvious 
mistakes  of  the  legislator,  or  important  changes  in 
economic  and  social  conditions.  He  fails  to  consider 
at  the  same  time  the  circumstance  that  the  specific  facts 
in  individual  cases  produce  "gaps"  in  every  legislative 
provision.  In  this  respect  he  has  not  succeeded  in 
appreciating  sufficiently  the  true  relation  of  the  statutes 
to  the  whole  body  of  the  law.  He  has  not  understood, 
or  at  least  not  scientifically  set  forth,  the  Graeco- Roman 
point  of  view  described  above,  according  to  which  it 
would  be  an  impossible  task  for  the  legislator  to  express 
every  general  principle  of  law  with  such  clearness  that 
out  of  this  rule  the  application  to  all  individual  cases 
might  be  evolved  by  a  simple  chain  of  deductions.41 
There  has  always  been  need  of  emphasizing  more  strongly 
the  point  already  made  by  Aristotle,  that  it  is  not  the 
purpose  of  a  statute  to  establish  a  specific  rule  for  every 
relation  of  life  that  may  occur.42 

40  Geny,  loc.  cit.  457  seq.,  580  seq.      For  a  critical  appreciation,  see 
Perceron,    in:     Annales     de    droit    commercial  et    industriel  frangais, 
vol.  14,   145-160;    Eycken,  "Methode  positive,"  pp.  368-386;  Lambert, 
(loc.  cit.  note  8)  pp.  34  seq.,  and  authorities  cited  p.  29,  note  1;    see 
also  Rumpf,  loc.  cit.  pp.  25-28. 

41  Comp.  Danz,  "Auslegung  der  Rechtsgeschafte,"  2d  ed.,  1906,  p.  79. 
« Valuable    suggestions    on    this    point   especially    in :     Kohler,    in 

Griinhut's  Zeitschrift,  vol.  13  seq.,  Jhering's  Jahrbiicher,  vol.  25, 
pp.  270  seq.,  and  "Lehrbuch  des  biirgerlichen  Rechts,"  vol.  1,  pp.  122 


160  KISS:    EQUITY  AND  LAW  [Cn.lV 

§  7.  Free  Legal  Decision,  Next  came  the  school  of 
"free  judicial  decision,"  which  in  appearance  took  to 
heart  what  has  been  said  here  and  attempted  to  eluci- 
date scientifically  the  "mysterious  saying,"  "La  loi  n'est 
pas  le  droit."  Its  adherents  start  from  the  proposi- 
tion that  a  statute  does  not  contain  a  comprehensive 
rule  for  the  decision  of  cases.  According  to  this  school 
there  are  nothing  but  "specific  decisions."  The  applica- 
tion of  a  statute  should  be  limited,  therefore,  "to  those 
cases  which  the  statute  itself  decides."  The  statute 
is  to  be  resorted  to  first,  but  only  in  those  cases  which 
it  mentions  specifically.  In  all  others  there  is  to  be  a 
"truly  free"  manner  of  decision.43 

Such  a  notion  as  this,  however,  does  not  get  us  much 
further  than  the  existing  doctrine.  In  the  first  place, 
Fuchs  goes  too  far  when  he  conceives  all  statutory 
provisions  as  "specific  decisions."  The  statute  never 
decides  a  specific  case  but  establishes  general  rules.44 

Precisely  for  this  reason  it  is  not  possible  to  draw 
a  sharp  distinction  between  statutes  that  provide  for 
all  cases  and  those  that  contain  "gaps."  The  line  is 

seq.  Also:  Biilow,  "Gesetz  und  Richteramt,"  pp.  41  seq. :  Hartmann' 
in:  Archiv.  Ziv.  P.,  vol.  73,  pp.  309  seq.,  400  seq.;  Zitelmann,  "Die 
Rechtsgeschafte,"  pp.  1  seq.,  "Kunst  der  Gesetzgebung,"  Dresden,  1904, 
pp.  40  seq. 

4S  Expressed  in  the  most  radical  and  exaggerated  manner  by  Fuchs, 
"Recht  und  Freiheit  in  unserer  heutigen  Justiz"  (Berlin,  1908),  pp.  14, 
seq.,  and  again:  "Die  Gemeinschadlichkeit  der  konstruktiven  Juris- 
prudenz"  (Karlsruhe  1909),  especially  pp.  75  seq.;  comp.  also  Gmelin, 
"Quousque!"  (Hannover  1910);  Sinzheimer,  "Die  soziologische 
Methode"  (Munich,  1909).  Contra:  Duringer,  "Richter  und  Recht- 
sprechung"  (1909,  and  also  in  the  paper  "Eine  neue  Methode,"  etc., 
in  Das  Recht,  1909.  —  Cf.  alsoOwe*  loc.  cit.  (note  1). 

44  In  principle  this  is  true  even  of  statutes  drawn  so  as  to  cover 
specifically  the  various  cases,  and  still  more  so  our  modern  statutes. 
In  these  it  seems  entirely  proper  "to  adhere  to  the  principle  of  progress- 
ing beyond  specific  provisions  toward  general  rules."  (Huber,  "Erlau- 
terungen  zum  schweizerischen  Zivilgesetzbuch,"  1902,  p.  24.)  Comp. 
also:  Gmiir,  loc.  cit.  pp.  27-28;  Biilow,  loc.  cit.  pp.30  seq.;  Geny,  "La 
Technique  legislative,"  in  "Livre  du  Centenaire  du  Code  Civil,"  vol.  2, 
pp.  989  seq. 


§7]  FREE  LEGAL  DECISION  161 

altogether  vague.  A  statute  is  never  likely  to  contain  an 
absolutely  exact  and  direct  decision  of  a  case  as  it  arises, 
for  there  will  always  be  some  features  with  which  the 
abstract  rule  of  law  cannot  concern  itself.  For  these 
a  supplementary  rule  of  specific  application,  established 
by  the  judge,  seems  to  be  absolutely  necessary.  The 
distinction  made  by  Fuchs,  according  to  which  the 
statute  is  to  be  limited  to  the  decision  of  cases  for  which 
it  specifically  provides,  is  therefore  erroneous  in  theory 
and  cannot  be  carried  out  in  practice.  We  should  rather 
say  that  the  general  framework  furnished  by  the  statute 
is  to  be  filled  in,  for  each  case,  by  means  of  interpretation, 
that  is,  by  following  out  the  principles  of  the  statute.45 
In  every  case,  without  exception,  it  is  the  business  of 
the  court  to  supply  what  the  statute  omits,  but  always 
by  means  of  an  interpretative  function.  It  is,  in  fact, 
the  urgent  task  of  legal  science  to  establish  in  an  exact  and 
practical  manner  the  fundamental  principles  of  the  proper 
method  by  which  the  courts  may  supply  such  omissions. 
§  8.  The  True  Method.  The  most  important  contri- 
butions toward  this  object  were  first  offered  by 
von  Billow.46  The  significance  of  his  position  must  be 
sought  not  only  in  the  fact  that  he  first  attacked  the 
dogma,  uncontroverted  theretofore,  according  to  which 
the  courts  had  nothing  to  do  with  lawmaking,  but 
especially  in  his  scientific  exposition  of  judicial  law, 
which  he  declares  to  be  a  command  of  the  State  establish- 
ing rules  of  law.47  In  this  manner  he  has  tried  to  inves- 
tigate and  expound  the  significance  of  judicial  law  as 
supplementary  to  statutory  law. 

45  Comp.  the  very  apt  remarks  of  Neukamp,  in  "Juristisches  Litera- 
turblatt,"  vol.  20,  p.  146. 

«  "Gesetz  und  Richteramt,"  pp.  35  seq.,  45  seq. 

47  Comp.  also  his  "Gestandnisrecht"  (1899),  pp.  130  seq.;  and 
"Heitere  und  ernste  Betrachtungen  iiber  die  Rechtswissenschaft" 
(1901),  passim. 


162  KISS:   EQUITY  AND  LAW  [CH.IV 

Official  legal  science,  however,  has  quietly  passed  by 
this  exceedingly  valuable  essay.  It  was  but  quite 
recently  that  his  ideas  found  appreciation  and  were 
further  developed,48  but  such  appreciation  means  an 
acknowledgment,  scientifically  and  officially,  that  there 
is  such  a  thing  as  courts  making  law,  and  that  the  supply- 
ing of  gaps  by  adjudication  is  one  of  the  sources  of  law.49 

A  detailed  discussion  of  these  propositions  would 
exceed  the  limits  of  space  at  present  at  my  disposal. 
Consequently  I  leave  to  some  other  occasion  their 
utilization  for  an  elaborate  theory  of  legal  sources.  Yet 
I  may  be  permitted  to  sketch  the  outlines  of  the  correct 
method  of  studying  the  manner  of  applying  the  law. 

§  9.  Reasons  for  Gaps  in  the  Statutes,  The  fact  that 
statutes  commonly  fail  to  provide  for  some  cases  that 
will  arise  may  be  analyzed  as  follows : 

a.  There  are  gaps  in  a  narrow  or   technical   sense 
when  there  is  a  lack  of  detailed,  abstract  rules  by  which 
a  submitted  case  may  be  decided. 

b.  The  framework  given  by  the  text  of  the  statute 
may  not  be  filled  in  when  the  text  does  express  all  that 
can  be  said  in  general  terms60  yet  does  not  furnish  rules 
for  individual  cases  directly  but  refers,  explicitly  or  by 
implication,  to  some  other  source  of  law. 

**Biilow,  loc.  cit.,  in:  "Das  Recht,"  vol.  10,  pp.  770  seq. 

«  Cf.  especially  Gmiir,  "Die  Anwendung  des  Rechts,"  pp.  71-80; 
Danz,  "Die  Auslegung  der  Recht  sgeschafte,"  (2d  edition,  1906),  and 
"Jhering's  Jahrbiicher,"  vol.  50,  pp.  1  seq.;  Wendt,  "Die  exceptio  doli 
generalis,"  etc.,  in  Archiv.  Ziv.  P.  vol.  100,'  pp.  1  seq.,  and  especially 
p.  101;  Stier-Somlo,  "Das  freie  Ermessen,  in:  "Festgabe  fur  Laband," 
1908,  pp.  447  seq.;  Oertmann,  "Gesetzeszwang,"  etc.,  loc.  cit.  (note  1). 
While  Gmiir  deals  principally  with  the  need  of  individualizing  and 
making  more  concrete  the  abstract  rules  of  law,  the  other  authors  men- 
tioned treat  especially  of  the  changeability  of  certain  imported  juridical 
concepts,  such  as  good  faith,  business  customs,  circumstances  of  the 
case,  and  show  how  they  should  be  interpreted,  according  to  the  prin- 
ciple of  "aequitas,"  so  as  to  fit  the  varying  needs  of  business  life. 

*o  Comp.  Zitelmann's  fundamental  observations,  which  are  at  the 
basis  of  the  whole  theory  of  "gaps  in  the  law,"  in  his  well-known  treatise 
"Liicken  im  Recht"  (1903),  pp.  30  seq. 


§9]  GAPS  IN  THE  LAW  163 

Under  this  head,  the  following  subdivisions  may  be 
distinguished: 

a.  Express  reference  to  some  other  source  of  law, 
and  under  this: 

aa.    Reference  to  the  discretion  of  the  court.51 

bb.     Reference    to    an    unwritten    yet    objectively 

ascertainable  rule  (e.g.,   good  faith,    considering  the 

custom  of  the  trade).52 

b.  Tacit  reference  by  means  of  what  has  been  called  53 
the  statutory  concepts  of  value.54      In  such  cases  also 
judicial  interpretation  makes  law  on  the  basis  of  "aequi- 
tas."     For  statutory  provisions,  as  Kipp  very  properly 
emphasizes  in  regard  to  Roman  "aequitas,"  are  for  the 
most  part  "drawn  in  such  a  manner  that  one  cannot 
conceive  at  all  of  their  application  without  the  inter- 
vention of  equitable  discretion,  for  the  reason  that  they 
operate  constantly  with  concepts  taken  from  life  without 

"  Cf.  Zitelmann,  "Liicken",  pp.  29  seq. — Oertmann,  loc.  cit.  pp.  19 
seq.  Legal  consequences  are  provided  generally  by  the  statute,  but 
the  measure  is  fixed  in  each  individual  case  by  the  court.  An  illustration 
is  the  fixing  of  a  criminal  sentence  within  the  limits  given  by  the  statute, 
where  there  can  be  no  review  of  the  judicial  discretion  of  the  court. 

"Typical  illustrations  are  found  in  sections  157,  242,  BGB;  comp. 
the  detailed  discussions  by  Danz,  loc.  cit.;  Wendl,  loc.  cit.;  and  Oert- 
mann, loc.  cit. 

"  For  elucidation  of  these  concepts,  see  Zitelmann,  "Kunst  der 
Gesetzgebung"  (Dresden,  1904)  p.  40;  Stier-Somlo,  loc.  cit.  p.  471, 
seq.;  Oertmann.  loc.  cit.,  especially  p.  13  seq.,  and  note  8,  p.  46. 

M  In  such  cases  it  appears  as  if  the  statute  had  expressed  everything 
exhaustively  and  in  detail,  yet  it  turns  out  that  the  terms  and  concepts 
used  need  to  be  furnished  with  concrete  contents.  The  terms  them- 
selves are  nothing  but  more  or  less  insufficiently  filled  outlines.  There 
is  nothing  better  than  a  rudimentary  rule,  yet  one  capable  of  being 
objectively  ascertained,  because  the  statute  refers  implicitly  to  matters 
(like  business  usages  and  similar  things)  which  in  practical  life  are 
generally  understood.  Such  subsumptions  are  properly  subject  to 
revision  on  appeal.  (Oertmann,  loc.  cit.;  Zitelmann,  loc.  cit.)  This  sub- 
ject has  been  touched  upon  by  authors,  but  its  true  importance  has 
hardly  been  appreciated.  Comp.  especially  Ehrlich,  loc.  cit.  in  Burian's 
Juristische  Blatter,  vol.  17,  p.  447;  same  author,  "Die  stillschweigende 
Willenserklarung,"  p.  293;  "Freie  Rechtsfindung,"  pp.  iii-vi;  "Tat- 
sachen,"  pp.  26  seq.;  Zitelmann,  "Liicken,"  pp.  45-46;  p.  32,  note  18. 
Comp.  alsoLaband,  "Staatsrecht,"  vol.  1,  §  57,  'iiii. 


164  KISS:    EQUITY  AND  LAW  [Cn.lV 

themselves  analyzing  them."  55  Properly  they  express 
their  intention  by  indirection  only.56  In  such  cases  the 
Court  is  bound,  to  be  sure,  by  the  statute,  but  finds  in  it 
only  the  raw  material  of  actual  rules,  and  it  is  his  business 
out  of  this  to  fashion  the  actual  rules.  In  this  connec- 
tion Danz  says  aptly  that  usages  of  business  recognized 
in  accordance  with  the  Code57  are  "rules  of  customary 
law  sanctioned  by  the  statute"  itself.68  Of  themselves 
such  rules  are  not  law  —  they  become  such  by  the  action 
of  the  Court  in  recognizing  them  pursuant  to  the  express 
or  implied  reference  to  them  found  in  the  statute. 

In  either  case,  both  where  there  are  technical  gaps 
and  where  the  framework  of  the  statute  is  empty,  there 
must  be,  for  the  decision  of  concrete  cases,  the  supple- 
mentary function  of  the  judges  based  on  the  principles 
of  justice  ("aequitas"). 

It  will  be  the  mission  of  a  future  theory  of  the  sources 
of  law  to  supply  the  proper  appreciation,  corresponding 
to  its  importance,  of  the  judicial  law  so  arising  as  an 
integral  portion  of  the  body  of  law  in  force,  and  as  a 
most  valuable  element  of  the  law  actually  administered. 

"  Kipp,  "Geschichte  der  Quellen,"  p.  11. 

«•  In  such  cases  the  statute  refers,  expressly  or  by  implication,  to 
some  other  source  whence  the  rule  may  be  drawn.  (Comp.  Gustav 
Schwarz  in  the  Hungarian  magazine  "Jogallam,"  vol.  6,  p.  99.)  In  the 
great  majority  of  cases,  this  "other  source"  consists  of  the  kind  of  social 
phenomena  we  call  "popular  customs."  These  are  simply  institutions 
of  social  life  produced  spontaneously  and  changing  from  time  to  time 
without  the  interference  of  official  legislation.  (Laband,  loc.  cit.  p.  553.) 
The  vague  provisions  of  a  statute  mentioned  in  the  text  (in  the  present 
sense,  all  legal  concepts  are  vague)  are  capable  of  being  filled  with  con- 
crete contents  by  reading  them  in  the  light  of  such  social  phenomena. 
We  have  in  mind  not  merely  what  has  been  called  "safety-valve  con- 
cepts," which  modern  draftsmen  of  statutes  use  to  make  the  statute 
more  elastic;  we  rather  refer  to  any  statutory  term,  the  concrete  mean- 
ing of  which  depends  on  the  changing  circumstances  of  practical  life. 
("The  nature  of  the  case,"  so  called;  comp.  Ehrlich,  in  Harden's 
"Zukunft."  vol.  14,  p.  234.) 

"BGB  §242. 

**Danz,  "Die  Auslegung  der  Rechtsgeschafte,"  p.  101. 


§9]  GAPS  IN  THE  LAW  165 

A  theory  of  legal  sources  that  pays  attention  to  the  law 
as  it  really  is  cannot  possibly  disregard  the  existence  of 
judge-made  law.  Such  law  does  actually  exist,  and 
theoretical  inquiry  simply  has  to  recognize  and  utilize 
it.  This  will  be  done  if  we  divide  all  rules  of  law  into 
statutory  rules  of  general  obligation  on  the  one  hand, 
and  judicial  or  supplementary  rules  obligatory  in  the 
specific  case.  The  former  represent  "law"  in  its  strict 
sense,  the  latter  equity  as  understood  by  the  Greek 
or  the  Roman  "aequum." 


166        BEROLZHEIMER:   EMOTIONALISM   [CH.V 


SENTIMENTAL  ADMINISTRATION  OF  JUSTICE:    ITS 
RELATION  TO  JUDICIAL  FREEDOM  OF  DECISION 

BY  FRITZ  BEROLZHEIMER  l 

§  1.  "FREEDOM  OF  JUDICIAL  DECISION"  IN  SUBSTANCE 
NOT  A  NEW  IDEA.  —  §  2.  "JUSTICE  BASED  ON  THE  ADJUST- 
MENT OF  INTERESTS"  AN  UNTENABLE  STANDARD.— 
§3.  "FREE  APPLICATION  OF  LAW"  EQUIVALENT  TO 
DECISION  AGAINST  THE  ESTABLISHED  RULE. —  §4.  "FREE- 
DOM OF  JUDICIAL  DECISION"  TO  BE  APPLIED  ONLY 
IN  ACCORDANCE  WITH  LEGAL  PRINCIPLES.— §  5.  THE 
PRINCIPLES  OF  "FREEDOM  OF  JUDICIAL  DECISION"  GROW 
OUT  OF  HISTORICAL  AND  ECONOMIC  CONDITIONS.—  !  6. 
THE  BASIS  OF  "FREEDOM  OF  DECISION"  IS  THE  IDEA  OF 
LIBERTY,  i.e.,  THE  ELIMINATION  FROM  THE  LAW  OF  ALL 
OPPRESSIVE  ACTION. 

§  1.  "Freedom  of  Judicial  Decision"  in  Substance  not 
a  New  Idea.  Regarding  the  propositions  commonly 
comprehended  under  the  term  "freedom  of  judicial 
decision"2  there  seems  to-day  to  be  a  consensus  of 

1  [Author  of  "System  der  Rechts-  und  Wirtschaftsphilosophie"(5  vols.), 
the  second  volume  of  which  has  been  translated  in  this  Series  under  the 
title  "The  World's  Legal  Philosophies."  The  translation  is  from  the 
essay  entitled  "Die  Gefahren  einer  Gefiihlsjurisprudenz  in  der  Gegen- 
wart,"  Berlin,  1911,  Rothschild.  The  translator  is  Ernest  Bruncken.] 

tCeny,  "Methode  d' interpretation  et  des  sources  en  droit  prive 
positif,"  Paris,  1899  ("libre  recherche  scientifique"),  pp.  457  seq.,  580 
seq.  Further,  Ehrlich,  "Liicken  im  Recht,"  In  Burian's  Juristische 
Blatter,  vol.  17,  pp.  417  seq.;  Ehrlich,  "Freie  Rechtsfindung  und  freie 
Rechtswissenschaft,"  Leipzig  1903;  Wurzel,  "Das  Juristische  Denken," 


§1]  JUDICIAL  FREEDOM  NOT  NEW          167 

opinion  to  this  extent,  that  the  great  majority  of  law- 
yers wish  to  see  the  courts  emancipated  from  the  letter 
of  the  law,  —  at  least  in  cases  where  the  application  of 
the  established  rule  would  imply  unjust  harshness,  or 
even  where  it  merely  appears  inequitable.  Ulpian's 
maxim:  "...  durum  est,  sed  ita  lex  scripta  est" 
is  to  be  converted  into  its  opposite. 

It  would  seem,  therefore,  that  there  is  substantial 
unanimity  about  the  desirability  of  "freedom  of  deci- 
sion," except  for  a  few  extremists  and  some  all  too  strict 
believers  in  the  letter  of  the  law.  But  we  are  far  from 
finding  a  clear  understanding  of  the  theoretical  nature 
of  such  freedom,  looked  at  (if  I  may  use  the  term),  from 
the  standpoint  of  legal  philosophy;  and  there  is  still 
less  comprehension  of  the  legal  inferences  and  actual 
consequences  that  will  follow  from  the  new  spirit; 
or  of  the  dangers  which  the  vagaries  of  court  decisions 
may  introduce,  especially  in  Germany.  Finally,  least 
of  all,  is  there  any  certainty  as  to  the  principles  accord- 
ing to  which  the  courts  are  to  decide  after  they  have  been 
freed  from  the  fetters  imposed  by  the  "intention  of  the 
legislator." 

The  expression  "freedom  of  judicial  decision"  is 
indeed  of  recent  date;  but  the  thing  intended  to  be 
expressed  thereby  is,  in  substance,  nothing  novel.  The 
courts  have  never  shown  themselves  to  be  mere 

Vienna  1904;  Cruet,  "La  Vie  du  droit  et  1'impuissance  des  lois,"  Paris 
1908;  Fuchs,  "Die  Gemeinschadlichkeit  der  konstruktiven  Jurispru- 
denz,"  Karlsruhe,  1909. 

As  far  back  as  1886,  Kohler  argues  strongly  against  the  view  that 
every  decision  must  be  based  upon  an  express  statute  (Griinhut's 
Zeitschrift,  vol.  13,  pp.  1-61,  p.  49). 

Compare  also,  quite  recently,  Rolin,  "Prolegomenes  a  la  science 
du  droit,"  Brussels  and  Paris,  1911.  (Rolin  advocates  sociological 
jurisprudence.  It  is  not  the  "intention  of  the  legislator"  that  changes 
the  law  but  rather  "tout  le  droit  est  coutumier."  Penal  laws,  if  too 
harsh,  may  remain  ineffectual  because  the  courts  will  not  apply  them. 
Loc.  cit.  pp.  116-118.)  Similarly  Cruet,  loc.  cit.  p.  252  ("La  mort  naturelle 
des  lois;  la  desuetude"). 


168        BEROLZHEIMER:   EMOTIONALISM   [Cn.V 

worshipers  of  the  letter,  —  barring  certain  periods  of 
imperfectly  developed  judicial  activity.  The  degree  of 
ireedom  exercised  has  differed  widely,  according  to  the 
character  of  the  legal  rules  actually  in  existence  and  the' 
prevailing  opinion  regarding  the  duty  of  judges.  In 
periods  when  legislation  was  sluggish,  in  jurisdictions 
where  the  formulated  law  3  was  very  fragmentary,  and 
whenever  the  judges  entertained  exalted  notions  of  their 
office,  the  constant  practice  of  the  courts  has  treated 
existing  rules  with  a  vigorous  freedom  which  to-day 
seems  hardly  credible.  One  need  but  remember  the 
"aequitas"of  the  Romans;  further,  the  reception  of  the 
Roman  law  in  Germany;  the  refusal  to  apply  the  Dra- 
conian provisions  of  the  "Carolina"4  on  the  ground 
that  the  practice  of  the  courts  had  made  them  obsolete ; 
the  decision  of  doubtful  questions  in  international  law 
up  to  recent  times;  the  free  judicial  interpretation  of 
the  French  practice  and  of  the  Anglo-American  judi- 
ciary; the  decisions  based  on  analogies  in  our  own 
courts;  and  the  verdicts  of  our  lay  judges  that  are  so 
often  based  on  a  mere  sense  of  justice. 

While  thus  we  see  that  everywhere  the  position  of  the 
judge  is  relatively  unfettered,  it  may  on  the  other  hand 
be  easily  believed  that  little  encouragement  to  a  free 
movement  of  judicial  method  would  be  expected  of  a 
code  going  into  detail  to  the  extent  employed  in  the 
"Preussische  Landrecht"  or  of  a  doctrine  directing  the 
court,  in  doubtful  cases,  to  follow  "the  intention  of  the 
legislator." 

'[TRANSLATOR'S  NOTE:  "Gesetzesrecht,"  which  comprises  all  law 
actually  promulgated,  whether  as  statute  or  other  written  law,  or  court 
decisions,  or  generally  accepted  opinions  of  writers.  It  excludes  those 
rules  which,  according  to  the  theory  of  Anglo-Saxon  judicial  interpre- 
tation are  indeed  implied  in  the  existing  body  of  legal  rules  but  have  not 
yet  been  formulated.] 

4  [TRANSLATOR'S  NOTE:  The  criminal  code  adopted  for  the  Empire 
under  Charles  \'.\ 


§1]  JUDICIAL  FREEDOM  NOT  NEW          169 

Thus,  in  former  times  and  other  countries,  "freedom 
of  judicial  decision"  was  exercised  when  there  was  need 
for  it,  on  the  basis  of  legal  tact,  without  saying  much 
about  it  and  without  worrying  how  such  practice  "praeter 
legem"  and  even  "contra  legem"  might  be  theoretically 
justified  (either  in  the  law  of  procedure  or  in  constitutional 
law).  At  the  present  time,  however,  the  claims  of 
"freedom  of  judicial  decision"  are  put  forward  vocifer- 
ously and  insistently  as  new  demands.  One  might  be 
inclined  to  explain  this  change  by  saying  that  the  present 
epoch  possesses  a  greater  receptivity  for  matters  of  legal 
philosophy  and  methodology.  Yet  this  cannot  be 
the  principal  reason;  for  in  prior  epochs,  which  felt 
greater  interest  in  legal  philosophy,  this  problem  was 
avoided  or  disposed  of  in  a  few  words. 

§  2.  "Justice  Based  on  the  Adjustment  of  Interests" 
an  Untenable  Theory.  In  the  days  of  the  Law  of  Nature 
theory,  when  people  believed  in  a  natural  law  over  and 
above  positive  law,  the  judge  decided  according  to  this 
Law  of  Nature  whenever  he  modified  a  positive  rule. 
Consequently  his  decision  "praeter"  or  "contra  legem" 
could  not  give  rise  to  any  particular  problem.  This 
is  still  the  case  in  decisions  according  to  the  unwritten 
law,  in  Anglo-American  jurisprudence. 

When  faith  in  this  higher  law  as  given  by  Nature 
began  to  wane,  the  "intention  of  the  legislator"  became 
a  welcome  substitute.  A  distinction  was  drawn  between 
statutory  and  customary  law5;  in  default  of  a  basis  of 
custom  the  decision  had  to  be  fitted  into  some  statute 
as  best  it  might.  To  that  end  the  judge  reverted  to 
what  the  legislator  was  supposed  to  have  intended,  or 
what  at  least  he  might  have  intended.  This  presumptive 

5  Development  of  law  by  "convention"  is  but  a  sub-species  of  statu- 
tory law.  Comp.  my  "System  der  Rechts-  und  Wirtschaftsphilosophie," 
vol.  3  ("Philosophic  des  Staates"),  Munich,  1906,  pp.  325-331. 


170        BEROLZHEIMER:   EMOTIONALISM   [CH.V 

intention  became  the  actual  intention  of  the  legis- 
lator. Modern  judicial  interpretation,  however,  is  not 
satisfied  to  do  this.  The  intention  of  the  legislator 
proves  to  be  a  fiction,  and  the  judges,  anxious  for  some- 
thing to  lean  on,  cast  about  for  a  new  support.  One 
theory  maintains  that  such  support  is  offered  by  a  "jus- 
tice based  on  the  adjustment  of  interests."  6 

This  theory  of  "adjustment  of  interests"  demands 
that  the  judge  proceed  in  analogy  to  the  legislator  by  a 
careful  weighing  of  all  the  interests  affected.  However, 
even  if  we  were  to  overlook  entirely  that  the  interests 
to  be  weighed  would  be  mostly  of  an  imponderable  charac- 
ter, especially  in  the  various  fields  of  public  law  (crim- 
inal, political,  administrative,  international,  and  ecclesi- 
astical law)  —  is  it  at  all  correct,  historically,  that  law 

•  Compare  Stampe,  "Rechtsfindung  durch  Konstruktion,"  Deutsche 
Juristenzeitung,  vol.  10,  1905;  pp.  417-422;  "Rechtsfindung  durch 
Interessenwagung,"  in  Deut.  Juristenztg.,  vol.  10,  pp.  713-719  ("in- 
terests found  worthy  of  protection"  are  to  be  decisive,  loc.  cit.  417,  717); 
"Gesetz  und  Richtermacht,"  in  Deut.  Juristenztg.,  vol.  10,  pp.  1017- 
1022.  Mueller-Erzbach,  "Die  Grundsatze  der  mittelbaren  Stellver- 
tretung  aus  der  Interessenlage  entwickelt,"  Berlin,  1905  ("Real 
method  of  law  formation").  Rumpf,  "Gesetz  und  Richter,"  Berlin, 
1906,  pp.  81-87  ("Finding  values,"  and  "Weighing  of  values"). 

Compare  further:  Heck,  "Die  Fortbildung  des  biirgerlichen  Rechts 
im  Wege  der  Rechtsverordmmg,"  in  46.  Jahresbericht  der  Juristischen 
Gesellschaft  zu  Berlin,  1906,  pp.  72-84.  (Contra  Stampe,  loc.  cit. 
p.  79.)  Heck,  "Interessenjurisprudenz  und  Gesetzestreue,"  Deut. 
Juristenztg.,  vol.  10,  pp.  1140-1142.  "Was  ist  diejenige  Begriffs- 
jurisprudenz,  die  wir  bekampfen?"  in  Deut.  Juristenztg.  14,  pp.  1457- 
1461.  (Page  1460:  The  main  task  of  administration  of  the  law  is  to 
inquire  into  the  connection  between  legal  rules  and  the  condition  of 
interests,  in  other  words:  the  investigation  of  interests.) 

CONTRA:  Landsberg,  "Das  entgegengesetzte  Extrem?"  in  Deut. 
Juristenztg,  vol.  10,  pp.  921-925.  Vierhaus,  "Die  Freirechtsschule  und 
die  heutige  Rechtspflege,"  Deut.  Juristenztg.,  14,  1909,  pp.  1169-1175. 
Comp.  a.\soM.Rumelin,  Address:  "Bernhard  Windscheid  und sein Einfluss 
auf  Privatrecht  und  Privatrechtswissenschaft,"  Tubingen  1907,  p.  24. 

According  to  Regelsberger,  "Gesetz  und  Rechtsanwendung,"  Jher- 
ing's  Jahrbiicher,  58,  1910,  pp.  146-174,  "the  judge  is  indeed  bound  by 
the  existing  rule,"  but  Regelsberger  distinguishes,  primarily  in  private 
law,  between  inflexible  rules  of  law,  incapable  of  development  by  jurists, 
for  instance  §§  90,  253,  246,  656,  762-764,  1297  BGB;  and  legal  rules 
capable  of  development  (loc.  cit.  pp.  155  seq.). 


§2]  ADJUSTMENT  OF  INTERESTS  171 

is  the  outgrowth  of  a  balancing  of  the  interests  and 
needs  of  the  various  sections  of  a  commonwealth?  On 
the  contrary,  has  not  rather  each  substantial  and  funda- 
mental change  in  the  law  been  the  result  of  a  struggle 
and  the  victory  of  one  part  of  the  community  over  the 
other  —  a  struggle,  to  be  sure,  under  the  banner  of 
a  more  modern  and  advanced  idea  of  justice,  and  a 
victory  of  law  purified  over  a  stagnating  condition  that 
had  come  to  be  felt  as  unjust? 

The  great  gains  for  freedom  during  the  centuries  since 
the  end  of  the  middle  ages  were  only  obtained  by  the 
assumption  of  new  powers  on  the  part  of  those  formerly 
subject  to  power,  and  not  uncommonly  by  threats  of 
force,  or  actual  use  of  force.  Such  was  the  process 
which  led  to  the  liberation  of  secular  concerns  from 
ecclesiastical  oppression;  the  political  emancipation  of 
the  middle  classes;  the  raising  of  the  peasantry  from 
serfdom;  the  giving  of  political  equality  to  the  Jews;  the 
economic  freeing  of  the  propertyless  workingmen;  and 
finally,  quite  recently,  the  social  and  professional 
emancipation  of  women.7  And  similarly,  it  is  changes 
in  cultural  or  social  points  of  view,  and  in  substantial 
relations  of  power  or  economic  conditions,  that  have 
opened  the  way  for  newly  arisen  or  transformed  legal 
notions,  —  when  for  instance  criminal  law  and  pro- 
cedure, from  the  Caroline  to  modern  days,  were  changed 
radically  and  now  again  seem  to  need  reform ;  or  when  in 
the  future  intercourse  of  nations  the  idea  of  arbitration 
takes  the  place  (as  it  ought)  of  diplomatic  intrigues;  or 
when  through  the  increase  of  economic  relations  beyond 
the  national  boundaries  it  becomes  desirable  to  unify 
commercial  laws  or  patent  and  copyright  laws. 

7Comp.  my  "System  der  Rechts- und  Wirtschaftsphilosophie,"  vol.  2 
("Die  Kulturstufen  der  Rechts-  und  Wirtschaftsphilosophie").  Munich, 
1905;  vol.  3  ("Philosophic  des  Staates"),  Munich,  1906. 


172        BEROLZHEIMER:    EMOTIONALISM    [CH.V 

In  all  such  cases  the  legislator  has  nothing  to  do  with 
the  "weighing  of  needs  or  interests,"  and  could  do 
nothing  with  it.  And  the  courts  quite  as  little.  Just 
as  well,  or  just  as  ill,  as  on  the  basis  of  the  "justice 
based  on  needs  or  interest"  might  cases  be  decided  by 
the  throw  of  dice.  The  "justice  based  on  needs  or 
interests,"  which  in  the  last  analysis  may  be  reduced  to 
Jhering's  utilitarian  theory,8  offers  an  erroneous  standard 
for  the  weighing  of  the  unweighable.  Moreover,  it  puts 
profit  and  advantage  in  the  place  of  right  and  justice,  so 
that  the  function  of  doing  justice  would  be  degraded  to 
a  mere  act  of  administration.  Thus  it  signifies  in  reality 
the  exact  opposite  of  what  it  believes  and  claims  to  be. 

§  3.  "Free  Application  of  Law"  Equivalent  to  Decision 
Against  the  Established  Rule.  When  is  this  "free  applica- 
tion" by  the  court  to  take  place  ?  The  generally  accepted 
opinion  to-day  inclines  toward  saying:  The  court  may 
and  should  expound  the  law  freely  "praeter  legem," 
but  to  allow  a  free  application  of  law  "contra  legem" 
would  amount  to  a  straining  of  judicial  power.  As 
against  that,  one  should  inquire  whether  in  reality  an 
exposition  according  to  the  principles  of  "freedom  of 
decision"  can  ever  be  merely  "praeter  legem,"  or  whether 
it  does  not  always  take  place  against  the  formulated  rule. 
Does  the  decision  of  the  freely  expounding  judge  simply 
supply  a  rule  where  none  existed  before,  or  are  there  no 
cases  at  all  that  are  not  covered  by  an  existing  rule? 

The  most  searching  inquiries  into  this  subject  are 
undoubtedly  those  of  Bergbohm 9  and  Zitelmann.10 

Bergbohm,  in  his  radical  opposition  to  the  doctrine 
of  the  Law  of  Nature,  tries  to  prove  the  unbroken  unity 
of  the  law  by  invoking  the  "power  of  logical  expansion" 

*  J  her  ing,  "Der  Zweck  im  Recht,"  4.  edition,  Leipzig,  1905. 
•"Jurisprudenzund  Rechtsphilosophie,"  I,  Leipzig,  1892,  pp.  371-393. 
""Liicken  im  Recht,"  Bonner  Rektoratsrede   vom    Oktober,    1902 
Leipzig,    1903. 


§3]  SOURCES  OF  FREE  DECISION  173 

of  the  established  law.11  Bergbohm's  exposition  itself 
has  a  logical  unity  of  its  own;  but  it  starts  from 
the  assumption  that  all  external  relations  not  governed 
by  established  rules  would  drop  into  a  "legal  vacuum," 
no  matter  "how  strongly  they  may  call  for  legal  regula- 
tion."12 But  though  German  law,  for  instance,  failed 
for  a  long  time  to  adopt  a  specific  rule  for  railway- 
accidents  liability,  and  though  to  this  day  it  has  failed 
to  enact  specific  laws  regarding  cartels  and  trusts,  yet 
these  matters  did  not  "drop  into  a  legal  vacuum." 
On  the  contrary  there  is  a  rale  for  these  matters,  but 
a  rule  obnoxious  to  the  sense  of  justice  of  our  times. 

Here  is  where  Zitelmann's  view  offers  us  sound  pre- 
mises. He  shows  that  (usually)  the  so-called  "unprovided 
case"  in  law  is  not  really  unprovided  for  in  the  sense  that 
there  is  no  legal  standard  for  the  decision  of  such  a  case. 
"Rather,  the  truth  is  simply  this,  that  in  cases  like  that 
under  discussion  an  exception  is  invariably  made  to 
some  existing  general  rule.  The  status  of  such  cases  is 
that  an  exception  from  the  general  rule  ought  to  have 
been  made  and  this  exception  is  based  on  that  which 
one  considers  the  purpose  of  the  general  rule.  .  .  . 
Thus  we  see  why  there  is  talk  of  unprovided  cases: 
The  lack  of  provision  consists  in  no  exception  having 
been  declared  for  cases  of  this  special  character." 13 
The  court  evidently  in  such  cases  decides  not  "praeter 
legem"  but  "contra  legem."  14 

Ji "  Jurisprudenz  und  Rechtsphilosophie,"  p.  387. 

Contra:  Jung,  "Von  der  logischen  Geschlossenheit  des  Rechts," 
Berlin,  1900,  pp.  131-157;  Stammler,  "Die  Lehrc  von  dem  richtigen 
Rechte,"  Berlin,  1902,  pp.  271-275;  Riimelin,  "Das  schweizerische 
Zivilgesetzbuch  und  seine  Bedeutung  f  iir  uns,"  Tubingen,  1908,  pp.  29  seq. 

""Jurisprudenz  und  Rechtsphilosophie,"  p.  387. 

»»"Liicken  im  Recht,"  p.  23. 

uZitelmann,  loc.  cit.  pp.  24  seq.  "The  supplying  of  rules  for  unpro- 
vided cases  means  that  the  court  breaks  through  the  general  rule  for  this 
special  state  of  facts,  and  finds  a  new  rule,  usually  a  further  development 
of  other  special  rules  already  in  existence." 


174        BEROLZHEIMER:   EMOTIONALISM   [Cn.V 

Of  course  this  explanation  does  not  apply  when  a 
statute  expressly  directs  the  court  to  decide  according 
to  good  conscience,  or  according  to  the  custom  of  busi- 
ness or  trade.  Here  the  law  refers  the  judge  to  custom 
or  equity  as  the  material  from  which  to  frame  his  deci- 
sion; but  the  source  of  the  judgment  is  still  the  formal 
statute.15 

In  the  genuine  case  of  adjudication  based  on  the  prin- 
ciple of  freedom  of  decision,  the  judge  derives  his  judg- 
ment from  a  source  of  which  it  is  admitted : 

1.     That  it  is  not  statutory  law. 
'2.     That  it  is  not  customary  law. 

3.     That  it  is  superior  to  the  formulated  law. 

Thus  the  question,  What  is  the  source  of  this  "liberty 
of  judicial  decision"?  gives  rise  necessarily  to  the  further 
question:  What  is  the  legal  status  of  the  judicial  func- 
tion, according  to  this  theory  of  "liberty  of  judicial 
decision"?  To  that  question  we  now  turn. 

§  4.  "Liberty  of  Judicial  Decision"  May  Be  Exercised 
Only  in  Accordance  with  Legal  Principles.  It  is  frequently 
argued  that  a  judge  deciding  according  to  "liberty  of 
judicial  decision"  is  changing  the  established  law,  and 
consequently  exercises  a  quasi-legislative  function.16 

15  Consequently  it  may  easily  lead  to  misconceptions  if  in  cases 
of  this  kind  one  speaks  of  "judge-made  law"  or  "judicial  rules."  Thus 
Danz,  "Riickstandigkeit  der  Rechtswissenschaft,  Richterrecht  und 
Gesetzesrecht :  Neue  Rechtsprechung,"  in  Deutsche  Juristenztg.  1911, 
no.  8,  pp.  565-570. 

The  fact  that  Danz  himself  —  and  correctly  —  does  not  consider 
the  court  as  a  maker  of  law,  with  quasi-legislative  functions,  appears 
from  his  observation  (loc.  cit.  p.  566,  note  2a) :  "These  are  customary 
rules  sanctioned  by  the  statute  (BGB)." 

Compare  also:  "Danz,  "Die  Auslegung  der  Rechtsgeschafte,"  3d 
edition,  Jena,  1911. 

'•Thus,  with  particular  acuteness:  Schlossmann,  "Der  Irrtum  liber 
wesentliche  Eigenschaften  der  Person  und  der  Sache  nach  dem  biir- 
gerlichen  Gesetzbuch,"  Jena,  1903,  pp.  34^3,  36-39. — Sternberg 
"Allgemeine  Rechtslehre,"  1,  Leipzig,  1904,  p.  138,  seq.  (No  sub- 
stantially definable  boundary  between  legislation  and  interpretation.) 
Saleilles,  "Einfiihrung  in  das  Studium  des  deutschen  burgerlichen 


§4]  SOURCES  OF  FREE  DECISION  175 

That,  however,  is  quite  a  mistake.17  In  such  cases,  no 
less  than  in  others,  the  court  is  aiming  merely  to  render 
justice  between  contending  parties,  and  by  no  means  to 
enact  a  new  administrative  regulation.  The  purpose 
is  to  decide  on  the  basis  of  some  source  of  law  supposedly 
already  in  existence,  —  irrespective  of  where  it  is  to  be 
found  or  how  applied. 

But,  conceding  this,  is  it  then  correct  to  maintain, 
as  Zitelmann  does,  that  there  is  a  general  maxim  to  this 
effect:  "The  law  is  whatever  is  found  in  this  statute, 
but  with  certain  qualifications  (extensions  and  restric- 
tions) to  be  found  by  analogy,  etc."?  18 

This  attempt  at  solving  the  problem  will  not  hold 
water.19  For  every  statute  purports  to  be  in  full  and 
complete  force,  and  if  its  effect  is  held  to  be  in  any  way 
qualified,  either  this  qualification  must  be  expressed  in 
the  statute  itself,  or  there  must  be  a  source  of  law  superior 
to  the  statute.  There  must  exist,  then,  a  higher  order 
of  justice,  no  matter  how  scant  in  its  data  of  materials, 
from  which  the  court  may  derive  both  its  authority  to 

Rechts"  (in:  Leonhard's  "Studien  zur  Erlauterung  des  biirgerlichen 
Rechts,"  Heft  14),  Breslau,  1905,  p.  91. 

Compare  also:  Saleilles,  "De  la  personnalite  juridique";  Paris,  1910, 
p.  27:  ".  .  .  The  directions  for  the  creation  of  a  foundation  should 
be  interpreted  as  the  creator  of  it  would  interpret  them  if  he  were  there, 
in  order  to  accomplish  the  end  he  had  in  view." 

Compare,  further,  the  excellent  expositions  of  Kohler,  "Ueber  die 
Interpretation  von  Gesetzen,"  Griinhut's  Zeitschrift,  vol.  13,  1886,  pp. 
1-61. 

17  Correctly  expressed  by  Zitelmann,  "Liicken  im  Recht,"  p.  26- 
Excellently  by  Jung,  "Von  der  logischen  Geschlossenheit  des  Rechts," 
Berlin,  1900,  pp.  146-148.  Compare  regarding  this  question,  also 
Saleilles,  "Einfiihrung  in  das  Studium  des  deutschen  biirgerlichen 
Rechts,"  p.  95. 

is  Zitelmann,  "Lucken  im  Recht,"  p.  26,  with  a  reference  to  a  pro- 
vision of  this  sort  in  the  first  draft  of  the  BGB. 

*•  Nor  is  a  solution  offered  by  saying  cleverly:  "The  code  is  an 
instrument  of  development,  not  of  ossification."  (Saleilles,  "Einfuh- 
rung in  das  Studium  des  deutschen  Rechts,"  p.  100.)  For  the  code 
is  the  fixed  result  of  a  course  of  development,  and  as  such  it  is  indeed 
an  obstacle  to  further  development. 


176       BEROLZHEIMER:   EMOTIONALISM   [CH.V 

decide  according  to  the  principles  of  "liberty  of  decision," 
and  also  those  principles  themselves.  The  judge  must 
have  some  such  foundation  if  he  is  to  administer  justice, — 
if  his  decision  is  to  be  justified,  both  in  his  own  con- 
science and  in  the  eyes  of  the  world,  as  a  decision  accord- 
ing to  law.  In  no  other  way  could  the  community  escape 
that  uncertainty  of  law  which  is  properly  regarded  as 
an  objection  to  the  demand  for  "liberty  of  judicial 
decision." 20  Hence  the  only  conceivable  alternative 
is  that  there  are  principles  of  law  outside  of  the  formu- 
lated rules  of  law. 

But  is  not  this  (one  may  ask)  a  return  to  the  Law  of 
Nature?  By  no  means.  Our  relation  nowadays  to  the 
Law  of  Nature  is  somewhat  analogous  to  that  between  the 
alchemist  and  the  most  modern  doctrines  of  chemistry, 
according  to  which  the  transmutation  of  particular 
elements  into  others  appears  possible.  Like  the  modern 
chemists,  we  once  more  adopt,  from  a  higher  standpoint, 
in  the  light  of  recent  discoveries,  the  available  portions 
of  earlier  doctrines  which  during  the  intermediate  period 
had  been  rejected  altogether.  The  fundamental  error 

20  Thus  Heck,  "Die  Fortbildung  des  biirgerlichen  Rechts  im  Wege 
der  Rechtsverordnung."  In  "46.  Jahresbericht  der  Juristischen  Gesell- 
schaft  zu  Berlin,"  1906,  p.  78;  Landsberg,  "Das  entgegengesetzte  Sys- 
tem," DJZ  vol.  10,  pp.  921-925.  (On  page  925:  "Law  has  for  its 
purpose  certainty  and  stability.")  Compare  further  Laband,  "Rechts- 
pflege  und  volkstiimliches  Rechtsbewusstsein,"  DJZ  vol.  10,  pp.  10-15. 

See  also,  very  recently,  Del  Vecchio,  "Sulla  positivita  come  carattere 
del  diritto"  (Prolusione  al  corso  di  Filosofia  del  diritto,  letta  1*  11.  feb- 
braio,  1911,  nella  R.  Universita  di  Bologna),  p.  17:  "The  pretended  free- 
dom in  the  application  of  the  law  would  in  effect,  besides  being  a  theoret- 
ical inconsistency,  constitute  a  permanent  menace  to  the  legal  liberty 
of  the  citizens,  which  finds  one  of  its  principal  conditions  in  the  certainty 
and  especially  in  the  unshaken  supremacy  of  the  law." 

On  this  point  and  on  the  further  one  that  even  the  "extreme  adher- 
ents of  freedom  of  decision,"  like  Ehrlich  (Rumpf),  Stampe,  Gnaeus 
Flavins  (Kantorowicz)  and  Fuchs,  desire  merely  to  find  rules  for  un- 
provided cases,  in  other  words,  hold  freedom  of  decision  proper  merely 
"praeter,"  not  "contra  legem,"  see:  Kantorowicz,  "Die  Contra-legem- 
Fabel."  In:  Deutsche  Richterzeitung,  3,  no.  8,  of  April  15,  1911,  pp. 
258-263. 


§4]  SOURCES  OF  FREE  DECISION  177 

of  the  Law  of  Nature  consisted  in  this,  that  it  believed 
in  an  eternal  model  of  law,  rigidly  unchangeable  and 
superior  to  established  rules;  and  that  at  the  same  time 
it  developed  this  model  law  in  accordance  with  the 
ideas  of  atomistic  liberalism,  i.e.  the  ideas  that  the 
State  is  made  up  of  the  sum  of  the  individual  citizens, 
that  formal  liberties,  like  freedom  of  contract,  of  engag- 
ing in  business  or  free  trade,  are  simply  "natural  rights," 
and  similar  notions.  To-day  we  have  learned,  in  con- 
trast to  the  Law  of  Nature  doctrine,  that  law  is  change- 
able by  nature;  that  it  is  subject  to  development;  that 
it  is  relative.  In  the  civilized  State  of  the  present  day, 
certain  fundamental  legal  convictions  are  held  abso- 
lutely, —  for  instance,  the  inadmissibility  of  personal 
enslavement,  freedom  of  religious  and  political  con- 
victions, inadmissibility  of  exploitation  by  means  of 
labor  contracts  (economic  enslavement),  and  so  forth. 
All  these  things  are  legal  maxims  which  every  Court  puts 
at  the  basis  of  his  decisions,  without  requiring  a  section 
of  some  code  as  authority.  These  legal  maxims  over- 
ride even  the  statutory  law.  These  are  legal  principles21 
even  though  they  have  not  existed  from  the  beginning 
and  may  perhaps  not  continue  permanently.  But, 
accepting  them  merely  as  doctrines  of  our  own  stage 
of  civilization,  we  are  nevertheless  here  dealing  with  law, 

21  To  discover  these  principles  is  the  task  of  the  science  of  law,  but 
in  doing  so  the  science  of  law  is  not  a  source  of  law  as  is  erroneously 
stated  by  Gnaeus  Flavius  ("Der  Kampf  um  die  Rechtswissenschaft," 
Heidelberg  1906,  p.  20).  It  merely  utilizes  the  source  of  law  in  dis- 
covering and  formulating  such  principles  of  law. 

Kiss,  who  believes  that  the  court  has  authority  merely  to  find  new 
rules  "praeter  legem"  for  unprovided  cases,  holds  the  most  urgent  task 
of  a  future  theory  of  the  sources  of  law  to  be  the  expression  of  the  judge- 
made  law  so  arising,  as  a  part  of  the  system  of  law  in  force,  and  as  a  most 
important  element  in  the  law  actually  administered.  ( Kiss,  "Billigkeit 
und  Recht,  mit  besonderer  Beriicksichtigung  der  Freirechtsbewegung," 
in  Archiv  fur  Rechts-  und  Wirtschaftsphilosophie,  vol.  3,  pp.  536- 
550;  Kiss,  "Gesetzesauslegung  und  ungeschriebenes  Recht,"  in  Jher- 
ing's  JahrbUchern,  vol.  58,  1911,  pp.  413-492,  473. 


178        BEROLZHEIMER:   EMOTIONALISM    [Cn.V 


not  with  something  outside  of  law.  The  vo/u-w 
BiKoiov  is  supplemented  and  corrected  by  the  <£wr« 
oYwuov.  The  "natural"  sense  of  justice  varies  accord- 
ing to  the  conditions  of  the  time,  the  locality  and  the 
national  character.22  At  bottom,  therefore,  it  is  not  an 
invocation  of  a  Law  of  Nature,  which  is  absolute,  but  of 
a  Law  of  Civilization,  which  is  relative.23 

Accordingly,  the  judge  who  applies  the  principles  of 
"liberty  of  judicial  decision"  decides  (to  be  sure)  against 
the  statute  but  in  accordance  with  the  unwritten  law. 
The  source  of  his  law  is  found  in  what  is  considered 
to  be  just  at  any  particular  period  and  within  any  par- 
ticular circle  of  civilization. 

§5.  The  Principles  of  "Liberty  of  Judicial  Decision" 
Grow  out  of  Historical  and  Economic  Conditions.  These 
fundamental  ideas  of  justice,  these  legal  principles, 
which  the  judge  applies  when  he  decides  according  to 
the  method  of  "liberty  of  judicial  decision,"  —  how  may 
they  be  ascertained? 

In  the  sciences  dealing  with  the  things  of  the  mind, 
the  historical  method  alone  can  lead  us  in  the  wavs  of 


«  This  is  in  effect  an  approximation  to  the  view  of  Stammler  ("Die 
Lehre  von  dem  richtigen  Rechte"),  who  practically,  although  approaching 
from  a  different  direction,  assumes  a  "Law  of  Nature  with  variable 
content." 

s»  The  correct  comprehension  of  the  subject  is  implied  by  describing 
"freedom  of  decision"  as  adjudication  according  to  equity.  This 
assumes  that  equity  (aequitas)  is  understood  as  a  part  of  legal  justice, 
and  a  decision  according  to  equity  as  a  legal  judgment.  Compare  Brie, 
"Billigkeit  und  Recht,  mit  besonderer  Beriicksichtigung  der  Freirechts- 
bewegung,"  in  Archiv  fiir  Rechts-  und  Wirtschaftsphilosophie,  vol. 
3,  1910,  pp.  526-534,  534.  In  this  connection,  Brie  holds  the  court 
authorized  to  supply  rules  for  unprovided  cases  only.  —  Reichel, 
"Erganzungen  zum  Referat  Brie,"  ibidem,  pp.  534  et  seq.,  535.  To  be 
sure,  Reichel  here  also  advocates  "Ideological  decisions." 

On  the  meaning  of  "aequitas"  compare  my  "System  der  Rechts- 
und  Wirtschaftsphilosophie,"  vol.  2,  pp.  103-108,  and  the  literature 
there  cited  [translated  in  vol.  i  of  the  present  Series].  Ibidem,  page 
104:  "  'Summum  jus,  summainjuria,'  in  this  phrase  the  idea  of  'aequitas' 
is  expressed." 


§5]  JUSTICE  AND  ECONOMICS  179 

progress.  This  is  due  to  the  nature  of  civilization. 
Here  there  is  everywhere  a  continuous  flow  of  evolution. 
A  new  development  is  not  altogether  new;  it  does  not 
arise  (as  it  were)  out  of  nothing,  but  rather  it  carries 
forward  and  gradually  changes  what  already  exists. 
There  are  additions  and  alterations,  but  no  radically 
new  creations.  The  beginnings  of  an  historical  deduc- 
tion of  law  and  the  State  were  to  be  found  already 
in  the  political  and  legal  doctrine  of  the  Law  of  Nature 
school.  The  study  of  historical  development,  how- 
ever, was  nowhere  attempted  seriously;  historical 
induction  was  rather  used  as  a  sort  of  a  screen  behind 
which  the  &  priori  notions  of  legal  philosophers,  who 
looked  at  the  historical  material  with  preconceived 
opinions,  were  ill-concealed.  One  cannot,  to  be  sure, 
reasonably  blame  the  writers  of  that  period  for  their 
insufficient  treatment  of  history.  For  in  those  days 
history  was  still  a  matter  of  polite  literature,  not  of 
scientific  investigation .  The  ensuing  ' ' H istorical  School 
entered  upon  the  true  path  when  it  postulated  the  his- 
torical basis;  but  it  never  got  beyond  the  first  elements. 
Its  activities  were  supplanted  by  the  new  science  of 
sociology.  The  merit  of  sociology  is  twofold:  it  called 
attention  to  the  significance  of  the  social  group  for  the 
rise  and  development  of  law;  and  further,  by  making 
society  the  central  point  of  law  and  the  State,  it  im- 
pressed upon  us  the  truth  that  legal  conceptions  derive 
life  and  content  from  nothing  but  their  actual  subject- 
matter.  Out  of  this  comes  the  recognition  that  there 
are  close  mutual  relations  between  law  and  economics.24 


*«  Compare  in  this  connection  my  "System  der  Rechts-  und  Wirt- 
schaftsphilosophie,"  5  vols.,  Munich,  1904-1907.  In  conjunction  with 
this,  and  jointly  with  Josef  Kohler,  I  have  founded  the  "Archiv  fiir 
Rechts-  und  Wirtschaftsphilosophie  mit  besonderer  Beriicksichtigung 
der  Gesetzgebungsfragen,"  which  now  runs  in  its  fourth  year.  Out 
of  this  has  grown  the  "Internationale  Vereinigung  fiir  Rechts-  und 


180        BEROLZHEIMER:    EMOTIONALISM    [Cn.V 

It  is  here  that  sociology  has  rendered  service;  but 
the  youthful  science  has  also  done  considerable  damage. 
Striving  for  "exact  investigation"  it  hit  upon  the  unfor- 
tunate idea  of  trying  to  transplant  the  method  of  natural 
science  into  legal  and  political  philosophy.  The  con- 
sequence was  that  all  sorts  of  amateurish  notions  choked 
the  germs  of  a  legal  philosophy  that  was  in  accord  with 
life;  and  the  further  consequence  was  that  in  general 
legal  and  political  science  nobody  so  much  as  attempted 
to  realize  the  requirements  of  the  historical  method. 

In  this  manner  it  has  naturally  come  about  that  in 
the  treatment  of  general  problems  legal  science  has 
to-day  sunk  to  such  depths  —  if  I  may  be  pardoned 
this  harsh  expression  —  that,  conscious  of  insecurity 
and  helplessness,  it  grasps  at  every  straw  offered  to  it. 
"Balancing  of  interests,"  "protection  of  interests  in 
special  need  of  protection,"  "protection  of  society," 
"social  ethics" -— these  are  the  catchwords  that  are 
made  to  supply  —  poorly  enough  —  nearly  all  the  needs 
of  legal  philosophy.25  In  this  manner  both  scientific 

Wirtschaftsphilosophie  samt  den  Gesetzgebungsfragen,"  the  flourishing 
success  of  which  is  well  known.  It  affords  me  a  peculiar  satisfaction 
to  see  that  my  combination  of  "law  and  economics,"  which  amounts 
to  a  scientific  platform,  has  been  taken  up  by  others. 

25  How  bad  conditions  are  to-day  will  appear  from  a  glance  at  criminal 
law.  In  this  field,  the  question:  What  is  the  object  of  punishment?  is 
treated  as  the  fundamental  problem  of  general  doctrine;  and  this  ques- 
tion is  answered  sometimes  one  way,  sometimes  another,  upon  a  very 
scanty  historical  foundation,  and  always  erroneously.  The  outcome 
is  that  the  criminal  court,  instead  of  judging  according  to  law  and  jus- 
tice, renders  some  administrative  decision,  like  an  administrative  officer, 
in  order  to  reform  the  offender,  to  protect  society,  or  to  deter  others. 
According  to  a  saying  of  Grotius,  borrowed  from  the  ideas  of  Scholas- 
ticism, punishment  is  the  "malum  passionis  "which  is  inflicted  in  order 
to  equalize  the  "malum  actionis."  This  pronouncement  is  still  found 
in  the  most  modern  textbooks  of  the  20th  century.  As  in  the  tale  of 
the  Talisman,  all  the  world  admires  the  beautiful  clothes  of  the  King; 
nobody  is  willing  to  be  vicious  or  simple  enough  to  see  that  in  truth  there 
is  nothing  to  be  seen — except  a  meaningless  phrase!  What  has  "evil" — 
an  ecclesiastical  and  ethical  concept  —  to  do  with  the  elaboration  of 
criminal  law?  Or  how  is  it  possible  that  punishment  by  the  State  — 


§5]  JUSTICE:  AND  ECONOMICS  isi 

inquiry  and  the  administration  of  the  law  are  loaded 
down  with  an  excess  of  sentimental  considerations,  and 
are  hardly  able  to  bear  up  under  the  load. 

In  contrast  to  this,  we  should  devote  ourselves  seriously 
to  the  historical  study  of  law  and  the  State,  if  the  science 
of  law,  after  being  freed  from  the  bonds  of  philology, 
is  to  be  rescued  from  aimless  wandering  and  raised  to 
equal  rank  with  other  sciences. 

What  is  needed  is  an  historical  elucidation  of  legal 
concepts,  legal  devices,  and  legal  rules,  with  reference 
to  economic  evolution.  Legal  history  together  with 
the  correlative  history  of  economics,  cultivated  in  this 
manner,  will  explain  the  true  essence  of  those  just 
demands  of  social  ethics  that  have  grown  out  of  the 
economic  exploitation  of  the  working  class  under  the 
yoke  of  capitalism,  and  have  for  their  aim  nothing  more 
than  the  emancipation  of  those  who  theretofore,  econom- 
ically speaking,  had  no  rights.  Unbiased  historical 
reflection  will  give  us  the  correct  standard  for  these 
recent  propositions  regarding  the  "right  to  legal  pro- 
tection" and  similar  things.  It  will  also  give  us  a  guid- 
ing rule  for  a  reform  of  criminal  law  and  procedure,  as 
well  as  for  a  correct  decision  of  criminal  problems  and 

as  is  taught  by  the  prevailing  doctrine  —  has  grown  out  of  revenge? 
If  that  were  really  true,  surely  everybody  who  reasons  consistently  and 
feels  humanely  would  have  to  proclaim  himself  a  follower  of  the  teachings 
of  Tolstoi! 

In  public  law  likewise  the  notion  of  a  "purpose  of  the  State,"  inherited 
from  the  theory  of  the  Law  of  Nature,  still  plays  its  part.  In  civil  law, 
"will"  in  connection  with  legal  transactions  still  does  its  metaphysical 
mischief,  just  as  if  law  had  to  do  with  "wills"  instead  of  persons  (the 
possessors  of  right)  and  estates.  And  in  all  branches  of  law  legal  con- 
cepts are  not  elucidated  by  historical  inquiry,  whereby  they  might  be 
put  in  the  way  of  further  juridical  evolution.  Rather,  they  are  deduced 
logically,  and  only  logically;  in  other  words  according  to  arbitrary 
notions.  These  arbitrary  notions  are  not  those  of  an  individual  but 
an  arbitrariness  of  judges  and  legal  scientists  who,  in  their  natural 
anxiety  to  find  support,  are  calling  on  "social  ethics"  for  help,  under 
a  vague  impression  that  from  the  point  of  view  of  social  ethics  the 
economically  weaker  party  should  under  any  circumstances  be  protected. 


182        BEROLZHEIMER:   EMOTIONALISM    [Cn.V 

the  fixing  of  punishment.  Moreover,  and  to  the  present 
point,  historical  investigation  will  also  show  that  the 
growth  of  law  will  result  in  coercive  rules  (formal  and 
otherwise)  which  in  the  interest  of  certainty  of  law  must 
be  applied  even  where  in  a  particular  case  they  appear 
harsh.  Thus  it  will  reveal  likewise  the  proper  limitations 
on  the  formation  of  law  by  "liberty  of  judicial  decision." 

§  6 .  The  Principle  of '  'Freedom  of  Judicial  Decision' '  is 
the  Idea  of  Liberty,  i.e.,  the  Elimination  from  theLaw  of  All 
Oppressive  Action.  The  Law  of  Nature  furnished,  or 
attempted  to  furnish,  a  legal  order,  more  or  less  in 
detail,  which  was  to  serve  as  a  model  for  positive  legis- 
lation. To-day,  however,  the  only  possible  aim  in 
developing  the  principles  of  "freedom  of  decision"  must 
be  to  find  limitations  and  bounds  of  such  principles, 
"ultra  quos  citraque  nequit  consistere  rectum," 
bounds  which  ought  to  be  drawn  against  an  inequitable 
application  of  the  law. 

While  the  Law  of  Nature  established  rules  of  law, 
"freedom  of  decision"  must  confine  itself  to  fixing  the 
exceptions  to  the  general  rule,  in  other  words,  to  show- 
ing those  principles  which  must  not  be  violated  by 
application  of  the  law.  Thus  the  function  of  the  prin- 
ciple manifests  itself  by  suspending  the  established  rule 
in  exceptional  cases. 

Here  is  an  essential  difference,  both  as  to  substance 
and  function,  between  the  principles  of  the  Law  of 
Nature  and  "liberty  of  decision."  There  is,  furthermore, 
another  and  fundamental  contrast  between  the  means 
of  finding  those  supra-legal  norms  of  "freedom  of  deci- 
sion" that  are  able  to  break  the  established  rule,  and 
the  method  of  the  Law  of  Nature.  For  the  latter  was, 
essentially,  deductive,  while  our  manner  of  proceeding 
must  be  made  inductive.  For  our  object  is  not  to 
insure  that  Judge  A  or  Judge  B,  on  the  basis  of  a  purely 


§6]          FREE  DECISION  AND  LIBERTY          183 

individual  opinion,  shall  ''decide  according  to  the  rule 
which,  if  he  were  legislator,  he  would  establish." 26 
It  is  rather,  to  find,  by  scientific  proof,  those  objective 
principles  of  law  which  must  be  complied  with  under 
any  circumstances,  whether  the  established  rule,  in 
letter  and  spirit,  agrees  therewith  or  not. 

Legal  history  proves  that  principle,  from  which  all 
the  rest  must  be  deduced,  to  be  the  idea  of  liberty.27 
All  law  implies  dominion  —  dominion  of  the  law.  Legal 
history  shows  that  the  primary,  essential,  and  funda- 
mental matter  is  not  the  legal  norm  (command  and 
prohibition)  but  rather  the  fixation  of  positive  rights; 
expressed  differently,  the  transformation,  by  means  of 
law,  of  actual  relations  of  power  or  dominion  into  legal 
power  or  legal  dominion. 

In  primitive  ages  all  dominion  is  one  of  religious  law. 
There  is  provision  for  a  King-priest;  sacredness  of 
property;  procedure  in  forms  sanctified  by  religion; 
extermination  under  .religious  sanction  of  the  criminal, 
who  as  fjiiacrfUL  has  polluted  the  commonwealth,  by 
sacrificial  death  or  outlawry. 

In  the  second  period  of  legal  culture,  dominion  has 
been  converted  into  an  ethical  form.  There  is  abso- 
lute power  of  tyrant  or  oligarchs;  an  absolute  claim  of 
creditor  against  debtor  going  even  as  far  as  a  right  of 
killing  or  enslaving  him  ("nexum");  unlimited  rights 
regarding  property  and  members  of  the  family;  pro- 
cedure considered  as  a  contest;  in  criminal  law,  the 
principle  of  retribution. 

In  the  third  and  —  up  to  the  present  —  last  period 
of  civilization  the  nature  of  law  as  a  relation  of  dominion 

2«  Swiss  Civil  Code,  art.  1,  chapter  2.  Compare  in  this  connection, 
Riimelin,  "Das  schweizerische  Zivilgesetzbuch  und  seine  Bedeutung 
fur  uns,"  Tubingen  1908,  pp.  31  seq. 

"  Comp.  with  this  and  what  follows,  my  "System  der  Rechts-  und 
Wirtschaftsphilosophie,"  vols.  1-5,  Munich  1904-1908. 


184        BEROLZHEIMER:   EMOTIONALISM   [Cn.V 

and  power  is  preserved  in  principle  but  limited 
and  mitigated  by  synthesis  with  the  ethical  idea  of 
liberty.28 

Under  the  influence  of  the  notion  of  liberty  (or  what 
means  the  same  thing,  the  idea  of  humanity)  con- 
stantly greater  numbers  of  men,  and  at  last  the  whole 
of  mankind,  are  recognized  as  possessing  legal  rights, 
as  capable  of  exercising  legal  rights,  as  entitled  to  be 
considered  by  the  law  as  "personae."  For  this  reason 
every  form  of  enslavement  is  eliminated  from  the  law: 
from  constitutional  law,  by  abolition  of  absolute  govern- 
ment, establishment  of  written  constitutions  and  intro- 
duction of  parliaments;  from  administrative  law,  by 
the  responsibility  of  ministers,  administrative  courts, 
and  self-government;  from  criminal  law,  by  the  aboli- 
tion of  inquisitorial  procedure  and  cruel  punishments. 
In  private  law,  the  prohibition  of  slavery  began  at  a  ' 
relatively  early  time,  but  emancipation  of  the  debtor 
proceeded  but  slowly  (remember  imprisonment  for 
debt!).  At  last  the  most  recent  age,  reaching  into  the 
present,  has  arrived  at  the  comprehension  of  the  con- 
nection between  law  and  economics,  and  that  a  con- 
tract of  service,  entered  into  under  the  forms  of  freedom 
of  both  parties,  must  frequently  result  in  the  economic 
enslavement  of  the  economically  weaker  party.  Thence 
arose  changes  in  law  which  are  connected  with  the 
movement  of  social  ethics  —  an  expression  often  vaguely 
enough  conceived.  The  idea  of  liberty  will  be  found  to 
be  both  the  cause  and  the  limitation  of  this  infusion 
of  ethics  into  the  law.  In  pursuance  of  this  idea  the 
established  order  may  be  suspended  precisely  so  far, 
and  no  farther,  than  is  required  to  avoid  the  economic 
enslavement  of  those  whom  that  order  affects. 

™  Hegel,  "Grundlinien  der  Philosophic  des  Rechts,"  §  142:  "Morality 
is  the  idea  of  liberty.     .     ." 


§6]  FREE  DECISION  AND  LIBERTY  185 

From  this  idea  of  liberty,  without  the  intervention 
of  a  statute,  follow  the  illegality  of  combinations  in 
restraint  of  trade  that  eliminate  competition  or  the 
freedom  of  commerce,  the  illegality  of  boycotts,  the 
invalidity  of  a  contract  of  service  with  excessive  hours 
of  labor,  and  so  forth. 

The  perils  of  the  movement  for  "freedom  of  decision" 
are  not  to  be  found  in  its  mere  existence.  On  the  con- 
trary that  means  a  step  in  advance  if  it  implies  a  recog- 
nition of  the  fact  that  the  "intention  of  the  legislator" 
is  a  figment  of  imagination,  and  that  a  slavish  adherence 
to  the  letter  of  statutes  and  rules  must  lead  to  the 
ossification  of  the  administration  of  justice. 

The  real  danger,  and  a  very  considerable  one  it  is, 
does  lie  in  this,  that  under  the  sway  of  "freedom  of 
decision"  the  courts  will  be  guided  by  mere  sentiment; 
and  to-day,  during  the  high  tide  of  the  movement  for 
social  ethics,  that  sentiment  may  be  downright  senti- 
mentality.29 This  danger  is  increased  still  more,  where 
it  is  attempted  by  means  of  talk  regarding  the  judges' 
alleged  ignorance  of  the  world  30  [Weltfremdheit]  —  a 
phrase  as  common  as  it  is  false  —  to  seduce  the  judge 
from  his  office  of  administering  justice  into  the  acquisi- 
tion of  miscellaneous  bits  of  information,  which  will  ever 
remain  mere  amateur  work.  The  danger  will  be  height- 
ened immeasurably  if  the  participation  of  laymen  in 
the  work  of  the  courts  should  be  increased  still  more.31 
Formerly  the  fundamental  right  of  the  citizen  was 

*•  Compare  also  the  excellent  remarks  of  Laband,  "Rechtspflege  und 
volkstiimliches  Rechtsbewusstsein,"  DJZ,  vol.  10,  pp.  10-15. 

<o  Contra,  Duringer  says  well  ("Richter  und  Rechtsprechung,"  Leip- 
zig, 1909,  p.  49) :  "The  authority  and  reputation  of  the  courts  cannot 
be  lessened  by  an  objective  criticism  of  their  functions." 

"Against  this,  Sohm  says  excellently  ("Ueber  Begriffsjurisprudenz," 
DJZ,  14,  pp.  1019-1024,  1020,  seq.):  "We  have  the  learned  judiciary 
and  propose  t.o  keep  it,  for  the  learned  judiciary,  and  that  alone,  is  the 
pillar  of  justice,  reigning  impartially  and  without  regard  for  persons." 


186       BEROLZHEIMER:   EMOTIONALISM   [Cn.V 

properly  adhered  to,  according  to  which  nobody  could 
be  deprived  of  his  day  in  the  ordinary  court.32  The 
principle  of  "balancing  of  interests"  will  multiply  rather 
than  lessen  these  dangers;  for  the  "weighing  of 
interests"  is  most  easily  done  by  sentiment,  and  hides 
at  the  same  time  the  fact  that  it  proceeds  merely  from 
sentiment.  Yet  even  under  the  rule  of  freedom  of 
decision,  it  is  the  business  of  the  court  to  administer 
justice. 

The  court  may  transcend  the  bounds  set  by  the  letter 
of  the  law,  but  must  not  do  so  with  the  aim  of  super- 
seding the  legislator  according  to  his  subjective  notions. 
He  should  do  so  rather  according  to  "approved  doctrine 
and  tradition,"33  and  be  fully  imbued  with  the  conscious- 
ness that  in  doing  thus,  also  he  is  the  servant  of  justice. 
For  law  is  law  and  must  prevail. 

"  Comp.  Laband,  loc.  cit. 

w  "Schweizerisches  Zivilgesetzbuch,"  art.  I1". 


§lj     KOHLER:  INTERPRETATION  OF  LAW     187 


CHAPTER  VI 

JUDICIAL     INTERPRETATION     OF     ENACTED 

LAW 

BY  JOSEF  KOHLER  l 

§  1.  THE  REASONS  WHY  INTERPRETATION  IS  NEEDED.  — 
§2.  LEGAL  INTERPRETATION  DISTINGUISHED  FROM  IN- 
TERPRETATION IN  GENERAL.  —  §3.  HOW  THE  TRUE  MEAN- 
ING IS  DISCOVERED.  —  §  4.  INTERPRETATION  CHANGING 
WITH  SOCIAL  CIRCUMSTANCES.  —  §  5.  AN  EXAMPLE  OF 
EFFECTIVE  INTERPRETATION. —  §6.  THE  INTENTION  OF 
THE  LEGISLATOR.  —  §  7.  BROAD  AND  NARROW  INTERPRE- 
TATION. —  §  8.  INTERPRETATION  OF  UNWRITTEN  LAW. 

§  1.  The  Reasons  Why  Interpretation  is  Needed.  To 
interpret  means  to  look  for  the  meaning  and  signifi- 
cance behind  the  expressed  words.  The  necessity  for 
interpretation  appears  not  merely  from  the  consideration 
that  thoughts  cannot  be  communicated  except  by  some 
external  means  of  expression,  but  also  from  this,  that 
frequently  thoughts  do  not  become  clear  and  perspicu- 
ous in  the  thinker's  own  mind  until  they  are  expressed. 
The  latter  consideration  has  commonly  escaped  atten- 
tion, and  a  succession  of  errors  has  resulted. 

To  interpret  is  to  discover  meaning  and  significance. 
It  does  not  concern  the  meaning  and  significance  of  what 
some  person  intends  to  say,  but  of  what  is  actually  said. 

['From  the  author's  "Lehrbuch  des  Burgerlichen  Rechts";  Book  I, 
chapter  iii,  sections  38  to  41.  There  has  also  been  translated  in  this 
Series  a  complete  work  of  the  author  on  the  Philosophy  of  Law,  the  edi- 
torial preface  of  which  translated  volume  (xii  of  this  Series)  contains 
an  account  of  the  author's  life  and  works.  The  present  translation  is  by 
Ernest  Bruncken.] 


188  KOHLER:  INTERPRETATION  OF  LAW  [CH.  VI 

It  is  a  common  error  to  believe  that  thought  is  a  com- 
plete slave  of  our  will  and  never  produces  anything  but 
what  we  intend.  In  reality,  thought  is  quite  independent 
of  will  and  often  goes  far  beyond  what  the  will  intended. 
A  thought  of  this  kind  is  uncertain  and  indefinite  until 
it  becomes  clear  by  being  expressed,  but  even  then  it 
remains  impossible  that  all  it  contains,  down  to  the 
last  and  most  profound  depths,  should  be  apparent  at 
once. 

The  reason  why  thought  has  so  wide  a  background 
will  be  found  in  this,  that  all  our  thinking  is  not  merely 
individual  but  also  social ;  what  we  think  is  not  our  own 
product.  It  is  rather  something  infinite,  the  product  of 
the  mental  labors  of  centuries  and  thousands  of  years. 
It  is  connected  with  an  infinite  number  of  other  thoughts; 
its  concepts  are  full  of  ideas  of  which  the  thinker  himself 
is  not  conscious. 

Hitherto  we  have  committed  a  great  error  in  not  real- 
izing the  sociological  significance  of  legislation.  In  his- 
torical science,  the  truth  has  been  generally  accepted  that 
history  is  not  made  by  individuals  but  by  society;  in 
the  science  of  legislation,  however,  we  have  assumed  the 
person  of  the  legislator  to  be  the  exclusive  factor.  We 
have  entirely  overlooked  the  fact  that  the  legislator  is  a 
man  of  his  age,  completely  saturated  with  the  ideas  of 
his  time,  completely  filled  with  the  civilization  surround- 
ing him.  We  forget  that  he  must  work  with  notions  and 
conceptions  taken  from  the  intellectual  atmosphere 
in  which  he  lives ;  that  he  must  employ  words  which  have 
a  history  stretching  back  for  centuries,  words  the  mean- 
ing of  which  is  fixed  by  a  sociological  process  of  language- 
formation  that  has  lasted  for  thousands  of  years  and  lies 
by  no  means  within  the  personal  choice  of  the  individual. 
To  believe  that  legislation  depends  exclusively  on  the 
intention  of  the  legislator  is  evidence  of  an  entirely 


§1]       SOCIOLOGICAL  INTERPRETATION        189 

unhistorical  attitude  toward  historical  processes.  Such 
notions  ought  to  disappear  completely  from  legal  science. 
Hence  we  may  say,  statutes  are  not  to  be  interpreted 
according  to  the  ideas  and  intentions  of  the  legislator, 
but  should  be  interpreted  sociologically,  as  if  they  were 
the  products  of  the  entire  people  of  which  the  legislator 
was  but  the  organ.2  Such  is  the  meaning  of  the  well- 
known  saying  that  the  law  is  much  wiser  than  the  legis- 
lator. The  law  contains  within  itself  the  results  of  an 
infinite  amount  of  social  labor,  so  that  the  maker  of  a 
statute  is  rarely  its  best  interpreter.  This  has  once 
more  been  illustrated  recently.  It  would  have  been 
a  misfortune  for  our  civil  code  if  the  interpretation 
furnished  by  Planck  had  to  be  accepted  as  a  canon  for 
our  guidance. 

From  all  this  we  may  infer:  (1)  Statutes  require  inter- 
pretation because  they  cannot  be  communicated  except 
by  words,  and  because  the  thought  is  concealed  under  the 
word  as  under  a  garment;  (2)  because  the  thought  con- 
tained in  a  statute  is  only  partially  clear  to  the  author 
of  the  statute,  who  is  no  more  the  master  of  the  thought 
than  thought  in  other  instances  is  the  mere  slave  of  the 
will;  (3)  by  means  of  interpretation  we  may  discover  a 
profound,  sometimes  an  almost  infinite,  significance  in 
a  statute.  For  the  thoughts  expressed  therein  are  by 
no  means  those  of  its  individual  author.  They  are  the 
thoughts  of  mankind  itself,  which  the  legislator  merely 
has  given  particular  form  and  expression.3 

§  2.  Legal  Interpretation  Distinguished  from  Inter- 
pretation in  General.  To  what  has  been  said  must  be 
added  another  point:  The  legislator  cannot  make  laws 
as  a  private  person,  but  only  in  his  capacity  as  legislator. 

2  "Lex  nihil  aliud  est  quam  ipsa  mens."      See  Bartolus,  ad  fr.  29  de  leg. 

3  George  Eliot,  in  "Adam  Bede,"  has  an  apt  remark  to  the  effect  that 
the  words  of  a  genius  are  of  greater  significance  than  the  thoughts  which 
inspired  them. 


190  KOHLER:  INTERPRETATION  OF  LAW  [CH.VI 

As  such  he  must  use  the  words  of  a  statute.  Whatever 
else  he  does  or  says  is  a  private  matter  and  lacks  all 
legislative  character.  It  follows  that  the  only  way  in 
which  a  legislator  can  act  is  to  express  a  thought  in 
words,  or  rather  to  utter  words  from  which  a  thought 
may  be  gathered.  Thus  it  appears  that  this  matter  has 
another  and  important  aspect.4  While  one  m|ght,  at 
first  glance,  assume  that  the  thought  expressed  in  the 
statute  is  the  thought  that  was  in  the  mind  of  the  legis- 
lator, but  which  has  an  effect  more  or  less  independent 
of  the  thinker,  it  appears  now  that  the  act  of  legislation 
has  produced  a  definite  text,  and  that  this  text,  and  noth- 
ing else,  bears  within  itself  legislative  force.  If  this  text 
conceals  within  itself  four,  five,  or  six  different  thoughts, 
any  one  of  which  may  be  gathered  from  it,  the  consequence 
must  be  that  not  one  thought,  but  any  of  these  thoughts, 
whichever  may  be  selected,  has  been  made  law.  By 
this  it  is  not  intended  to  say  that  any  one  of  these  five 
or  six  thoughts  may  be  arbitrarily  picked  out,  but  rather 
that  it  is  the  task  of  legal  technic  to  select  the  right  one 
from  among  these  five  or  six  thoughts.  What  thus  lies  in 
the  province  of  legal  technic  does  not  also  appertain  to 
individual  or  social  psychology.  From  this  it  follows 
that  the  interpretation  of  a  statute  is  something  different 
from  interpretation  in  general.  Interpreting  a  statute 
means  not  only  to  find  the  meaning  concealed  behind  the 
expression,  but  also  to  select  from  the  various  meanings 
which  the  text  may  bear  that  meaning  which  must  be 
held  to  be  the  correct  and  authoritative  one.  The  process 
is  similar  to  that  in  theology,  when  it  becomes  necessary 

•  This  aspect  I  had  not  yet  comprehended  when  I  wrote  the  paper 
in  Griinhut's  Zeitschrift,  vol.  13,  p.  1,  but  it  is  already  found  in  the 
article  in  Kritische  Vierteljahrs-Schrift,  n.  s.,  vol.  18,  p.  515.  There  is  an 
excellent  dictum  in  RG  March  25.  1891,  Entscheidungen,  vol.  27,  p.  411: 
"The  legislator  can  use  but  one  form  of  expression,  by  enacting  a  law. 
What  cannot  be  found  in  the  act  is  not  written  law." 


§2]  LEGAL  INTERPRETATION  191 

to  show  which  among  the  various  meanings  that  a  sacra- 
ment or  a  sacramental  formula  may  have  is  the  meaning 
corresponding  to  the  truth  of  salvation. 

§  3.  How  the  True  Meaning  is  Discovered.  The 
thought,  then,  contained  in  a  statute  may  mean  any 
thought  that  can  be  found  in  it,  so  that  a  statute  may 
contain  two,  three,  five,  or  any  number  of  thoughts, 
any  one  of  which  may  possibly  be  the  correct  one. 
The  principles  of  interpretation,  therefore,  must  be  fit 
to  help  us  not  merely  to  find  the  possible  thoughts  con- 
cealed in  the  text,  but  also  to  select  from  all  possible 
thoughts  found  the  correct  one.  There  are  various  tests 
by  which  to  distinguish  the  correct  thought.  Formerly, 
when  I  had  looked  at  the  matter  exclusively  from  the 
point  of  view  above  described  as  the  first  one,  I  believed 
that  the  decisive  criterion  was  the  intention,  and  that  the 
intention  in  the  mind  of  the  legislator  could  be  discov- 
ered, more  or  less  definitely,  from  the  motives  of  those 
who  had  promoted  the  passing  of  the  statute.  I  no  longer 
believe  that  this  is  the  most  important  consideration, 
although  I  do  not  deny  that  a  certain  importance  attaches 
to  this  point  of  view. 

The  principal  consideration  is  rather  this:  Among  the 
possible  interpretations  of  the  statute  we  are  to  select 
that  which  gives  to  it  the  most  reasonable  and  salutary 
meaning,  and  which  will  produce  the  most  beneficial 
effect.  It  is  hardly  necessary  to  justify  this  proposition; 
for  it  is  self-evident  that  legal  life  prospers  best  where 
statutes  have  the  most  rational  and  efficient  meaning. 
The  main  business  of  legal  science  should  be  to  serve  legal 
practice  by  making  the  law  reasonable.  This  truth  has 
been  obscured  by  making  an  idol  of  subjective  interpre- 
tation. When  this  misconception  is  removed,  the  truth 
appears  clearly  enough.  Only  when,  from  this  point  of 
view,  several  meanings  are  conceivable  so  that  beneficial 


192  KOHLER:  INTERPRETATION  OF  LAW  [Cn.vi 

results  may  be  expected  from  one  interpretation  as  well 
as  from  another  —  only  then  will  it  be  necessary  to 
trace  the  connections  of  the  various  statutory  provisions 
and  to  prefer  that  interpretation  which  will  make  the 
statute  most  consistent  with  itself  and  most  organ- 
ically constructed  in  detail.  In  such  cases  we  shall 
have  to  pay  particular  attention  to  the  proper  rela- 
tions of  the  various  provisions  found  in  the  whole  body 
of  the  law  of  the  country.  For  a  salutary  state  of  the 
law  means  that  the  several  statutes  dovetail  into  each 
other  rather  than  present  a  scattering  mass  of  unrelated 
provisions. 

If  even  this  is  not  sufficient  to  obtain  a  clear  result, 
it  will  be  permissible  to  consider  the  purpose  the  law  has 
in  view  and  to  inquire  what  objects,  fears,  and  desires 
were  agitating  the  community  at  the  time  when  the  law 
was  adopted  in  order  to  supply  a  want  felt  by  society. 
This  also  is  proper  enough ;  for  it  is  quite  right  that  when- 
ever the  other  ways  of  interpretation  do  not  satisfy  us 
we  should  adopt  an  interpretation  which  is  not  only  the 
most  reasonable  but  which  also  comes  nearest  to  what 
the  statute  had  in  view. 

§  4.  Interpretation  Changing  with.  Social  Circum- 
stances. It  follows  from  all  this  that  the  interpretation 
of  a  statute  must  by  no  means  of  necessity  remain  the 
same  forever.  To  speak  of  an  exclusively  correct  inter- 
pretation, one  which  would  be  the  true  meaning  of  the 
statute  from  the  beginning  to  the  end  of  its  days,  is 
altogether  erroneous.  Such  a  view  misapprehends  the 
purpose  of  statutes;  it  deals  with  them  as  if  they  were 
instruments  for  understanding  the  nature  of  the  world 
instead  of  means  of  conferrirg  a  benefit  upon  it.  A 
statute,  however,  in  truth  is  nothing  but  a  way  of  better- 
ing conditions,  an  instrument  for  attaining  certain 
human  ends,  for  promoting  civilization,  for  repressing 


§4]       ALTERATION  OF  CIRCUMSTANCES      193 

whatever  factors  are  inimical  to  progress,  and  for  develop- 
ing the  powers  of  the  nation.  It  is  an  object  of  knowledge 
in  so  far  only  as  it  becomes  necessary  to  recognize  its 
quality  of  being  a  changeable  and  changing  instrument  of 
good,  or  in  so  far  as  it  is  a  factor  of  social  development 
which  may  have  the  intended  effect  on  its  opposite,  and 
which  we  must  understand  in  order  to  judge  how  and 
whether  it  serves  its  intended  purpose.  This  should  be 
recognized  in  interpreting  a  law.  The  same  remedy  is 
bound  to  have  different  effects  according  as  there  is  a 
change  in  the  circumstances  of  the  times  and  the  sur- 
rounding social  conditions.  To  disregard  such  changes 
and  to  insist  that  a  statute  must  continue  to  work  as  of 
old  is  like  feeding  a  grown  man  on  the  same  food  as  an 
infant.  One  might  as  well  legislate  for  a  nation  with 
developed  manufacturing  industries  in  the  same  manner 
as  for  a  strictly  rural  community , or  recognize  no  difference 
between  the  dusk  and  the  glare  of  the  noonday  light. 
By  recognizing  that  interpretation  may  change  with  the 
times  it  is  possible  'to  give  to  statutes  a  certain  elasticity, 
by  which  they  may  correspond  with  changing  social 
requirements  and  continue  to  confer  benefits  on  the 
community  even  after  all  the  conditions  have  changed 
which  originally  brought  about  their  adoption. 

A  statute,  accordingly,  is  an  instrument  for  producing 
beneficial  results,  and  not  a  social  phenomenon  to  be 
examined  with  a  view  to  its  truth  or  falsity.  True  or 
false  are  conceptions  that  have  as  little  to  do  with  laws 
as  with  sociological  processes.  Such  processes  take  differ- 
ent forms  in  the  various  epochs  of  the  history  of  a  people. 
Just  so  a  legal  principle  adopted  by  a  people  will  have  to 
take  differing  shapes  in  accordance  with  time  and  space. 
Not  to  recognize  this,  to  think  of  a  statute  as  a  pheno- 
menon the  truth  of  which  has  to  be  sought,  and  to 
regard  that  truth  as  but  a  single  deduction  naturally 


194  KOHLER:  INTERPRETATION  OF  LAW  [Cn.  VI 

flowing  from  the  statute  itself  —  all  this,  is  what  con- 
stitutes scholasticism.  The  scholastic  thinks  in  terms  of 
being  about  what  should  be  conceived  in  terms  of  action. 
Instead  of  trying  to  find  the  most  desirable  effect  he  is 
trying  to  discover  the  correct  effect.  Instead  of  recog- 
nizing that  there  may  be  a  variety  of  effective  meanings 
he  can  see  but  one.  That  is  analogous  to  insisting  that 
the  manners  and  customs  of  but  a  single  nation  can  be 
the  right  ones. 

Interpretation  may  change,  and  cannot  but  change. 
For  instance,  the  interpretation  of  the  French  Code 
Civil  has,  within  a  hundred  years,  undergone  many 
changes.  All  important  events  in  the  life  of  the  nation 
have  had  their  influence  on  giving  direction  to  its  interpre- 
tation. By  the  development  of  commerce  and  industry, 
rules  which  formerly  nobody  had  ever  thought  or  dreamt 
of,  have  arisen  out  of  sections  that  had  not  been  changed. 
Thus  the  whole  law  of  unfair  competition  has  grown  out 
of  two  sections  (sections  1382,  1383)  to  which  originally 
nobody  had  been  able  to  ascribe  any  such  meaning. 

§  5.  An  Example  of  Effective  Interpretation.  It 
appears,  therefore,  that  in  interpreting  a  statute  one 
should  first  look  to  its  reason,  then  to  its  logical  consist- 
ency, and  finally  to  the  history  of  social  movements. 
The  following  is  an  example.  The  statute  defines  the 
difference  between  a  design  and  an  invention  in  such  a 
way  that  the  interpreter  may  choose  from  a  number  of 
meanings.  The  reasonable  choice  would  be  to  find  the 
distinction  in  this,  that  the  one  refers  to  the  utilization 
of  natural  forces,  the  other  to  an  arrangement  in  space. 
This  form  of  interpretation  will  give  to  industry  the  best 
possible  protection;  it  is  the  most  liberal  that  can  be 
imagined  and  most  capable  of  promoting  the  beneficial 
efforts  of  industry.  By  reason  of  the  .fact  that  an  arrange- 
ment in  space  comprehends  both  simple  and  complicated 


§5]  EFFECTIVE  INTERPRETATION  195 

forms,  such  a  conception  of  the  subject  affords 
especially  an  opportunity  to  protect  the  same  article 
from  different  sides,  to  make  it  capable  of  receiving  both 
an  invention  patent  and  a  design  patent.  Such  an  inter- 
pretation, moreover,  will  make  our  industrial  legislation 
a  definite,  organic  body  and  enable  it  to  develop  in  a 
consistent  manner.  All  other  considerations  should 
yield  to  that.  Especially,  there  is  no  need  of  troubling 
ourselves  about  the  fact  that  the  movement  for  the  adop- 
tion of  a  patent  law  of  designs  contemplated  no  such 
far-reaching  consequences  but  rather  desired  to  protect 
new  ideas  of  minor  importance  which  were  contrasted 
with  "real  inventions."  Still  less  can  anything  of  value 
in  this  matter  be  learned  from  expressions  in  preliminary 
reports  or  parliamentary  speeches.  Any  interpretation 
based  on  such  considerations  is  sure  to  prove  defective 
and  cannot  succeed  in  promoting  the  just  requirements 
of  the  industrial  world. 

§  6.  The  Intention  of  the  Legislator.  The  method 
of  interpretation  formerly  prevailing  was  nothing  but 
one  great  error.5  It  failed  to  recognize  that  every  work 
of  the  intellect  is  the  product  of  social  forces,  and  also 
that  the  contents  concealed  in  the  written  text  are  of 
infinite  extent,  and  that  the  idea  contained  in  it  has  a 
life  of  its  own  independent  of  the  person  who  thinks  or 
expresses  it.  In  an  attempt  to  make  the  idea  the  mere 
slave  of  the  will,  this  method  led  to  the  conclusion  that 
whatever  the  legislator  had  intended  was  the  law.  That, 
however,  is  utterly  wrong-headed  and  inconsistent  with 
the  history  of  human  thought.  As  a  consequence  the 
actual  intellectual  content  was  substantially  cut  down 
and  nothing  of  it  was  accepted  as  having  been  actually 

5  The  germs  of  correct  notions  may  be  found  in  Schaffrath  and  von 
Hahn;  but  Schaffrath's  arguments  were  declared  to  be  actual  nonsense 
by  the  reviewers,  while  von  Hahn  was  combated  by  Goldschmidt  and 
others. 


196  KOHLER:  INTERPRETATION  OF  LAW  [CH.  VI 

expressed  but  what  the  persons  connected  with  the  act  of 
legislating  had  actually  comprehended  and  by  an  act  of 
will  put  into  effect.  The  result  was  a  restriction  of  the 
law.  The  place  of  systematic  consistency  was  taken 
by  historical  whims  and  individual  crotchets. 

Such  a  method  of  interpretation  is  a  mistake  even  if  we 
assume  the  legislator  to  be  an  absolute  monarch  whose 
mere  will  is  law.  Truly  such  a  one  would  be  at  liberty, 
after  giving  a  law,  to  interpret  it  by  a  second,  declaratory 
one.  Such  an  interpretation,  however,  would  be  effec- 
tive not  because  it  made  plain  the  thought  of  the  first 
act,  but  because  it  is  a  new  act.  If,  however,  the  con- 
stitution of  the  government  were  such  that  even  this 
absolute  ruler  were  at  least  bound  to  observe  some  form, 
such  as  for  instance  publication,  before  his  will  became 
law,  it  would  follow  that  at  least  his  private  writings  or 
diaries  could  not  be  used  to  help  interpreting  his  act. 

In  our  modern  constitutional  States,  however,  where 
there  are  several  coordinate  branches  of  the  legislative 
power,  this  method  is  quite  intolerable.  Here,  whenever 
alaw  is  adopted,  all  that  is  really  agreed  upon  is  the  words. 
For  among  those  who  have  anything  to  do  with  the  pas- 
sage of  the  act  frequently  something  different  is  under- 
stood by  each.  Even  within  one  of  these  various  bodies 
that  must  give  their  assent,  there  may  be  several  groups  or 
parties,  each  understanding  something  different  by  the 
same  words  and  agreeing  only  because  of  their  different 
understanding.  If  one  were  to  insist  seriously,  in  such 
cases,  that  the  intention  of  the  legislators  must  be  fol- 
lowed, one  would  have  to  arrive  at  the  conclusion  that  on 
account  of  the  different  meanings  attached  to  the  words 
by  different  members  of  the  legislative  body  the  act  had 
really  not  been  adopted  at  all.  That  is  so  absurd  a 
conclusion  that  it  is  at  once  rejected,  although  there 
have  been  a  few  fanatics  of  logical  consistency  who  have 


§6]  LEGISLATIVE  INTENTION  197 

actually  dared  to  accept  such  a  result.  The  only  way 
out  of  this  dilemma  was  by  fictions  and  arbitrary  assump- 
tions. Especially  this  assumption  has  been  a  favorite, 
that  anything  stated  in  the  "motives"6  of  the  Govern- 
ment and  not  expressly  denied  by  parliament  is  taken  for 
agreed.  It  is  also  said  that  anything  asserted  by  a  mem- 
ber and  not  contradicted  must  be  held  to  be  the  unani- 
mous sense  of  parliament.  Such  theories  resulted  in  the 
most  startling  exaggerations  of  the  importance  attached 
to  the  preliminary  utterances  made  regarding  an  act 
before  its  passage.  These  propositions,  however,  are  all 
wrong.  Whether  a  thing  is  said  or  not  in  debate  depends 
on  many  accidents.  More  importance  than  to  any 
intention  to  agree,  may  have  to  be  attached  to  the  fact 
that  a  voluble  orator  suffered  with  catarrh,  that  some 
member  of  the  opposition  had  liver  complaint,  or  that 
the  attractions  and  diversions  of  the  capital  were  too 
strong  for  others.  Surely  it  would  be  a  strange  method 
of  interpretation  by  which  the  validity  of  law  might 
depend  on  some  parliamentarian's  state  of  digestion. 
Many  a  speech  was  left  undelivered  on  account  of  the 
carrying  of  the  previous  question,  or  because  some  mem- 
ber suffered  with  fatigue,  or  because  he  was  kept  in  con- 
versation in  the  lobby.  When  you  take  a  look  at  actual 
life,  all  logical  devices  of  the  sort  described  are  seen  to 
be  futile. 

Accordingly,  declarations  in  reports  or  the  debates  in 
parliament  cannot  be  of  much  importance  for  discovering 
the  true  meaning  of  the  law;  at  most  they  may  serve 
to  show  the  state  of  public  opinion  or  the  wishes  of  sub- 
stantial elements  of  the  people.  As  far  as  that  goes,  how- 
ever, such  declarations  are  no  more  significant  than  any 

•["Motive"  is  the  term  given  in  German  parliamentary  practice 
to  the  explanatory  report  accompanying  a  bill  introduced  by  the  Govern- 
ment.— TRANSL.] 


198  KOHLER:  INTERPRETATION  OF  LAW  [CH.VI 

other  evidence  of  what  the  public  are  thinking  about. 
Some  article  in  a  newspaper,  or  some  book  that  exer- 
cises a  determining  influence  on  public  opinion,  may 
often  be  of  far  more  importance  for  such  a  purpose  than 
anything  said  in  debate  or  reports.  The  publication  of 
such  debates  and  reports  may  be  interesting  because 
the  state  of  feeling  and  opinion  is  reflected  therein, 
which  is  always  instructive  from  a  general  point  of  view. 
For  the  interpretation  of  the  statute,  no  particular 
importance  ought  to  be  attached  thereto.  The  danger 
of  abuse  of  these  publications  is  constantly  greater 
than  any  utility  they  may  have.  Therefore  it  would  be 
better  always  to  let  the  statute  be  promulgated  without 
allowing  the  public  to  see  any  of  the  preliminary  reports. 
This  would  seem  desirable  in  connection  with  any  stat- 
ute, but  especially  in  regard  to  the  Civil  Code,  the 
report  of  the  preliminary  discussions  on  which  is  not 
even  official  and  is  poorly  worked  out  in  every  respect. 
The  Supreme  Court  says  about  this  report 7:  "Moreover, 
the  report  .  .  .  cannot  be  decisive  of  the  true 
meaning  of  the  statute.  It  is  a  private  work  and  does 
not  originate  with  the  legislative  power.  It  was  not  in- 
tended, nor  is  it  authorized,  to  declare  the  meaning  of  the 
statute."  Now,  then,  why  was  that  report  ever  pub- 
lished? 

§  7.  Broad  and  Narrow  Interpretation.  The  principle 
expressed  in  the  statute  works  within  the  words,  as  the 
motive  power  within  the  machine.  Just  as  there  are 
sometimes  found  inert  parts  of  a  machine,  which  are  net 
in  due  proportion  to  the  power  to  be  developed  and  con- 
sequently are  but  a  hindrance  and  obstacle  to  its  proper 
functioning,  so  there  may  be  inert  parts  in  the  text 
expressing  a  statute.  It  may  be  that  a  statute  contains 
two  ideas,  if  all  expressions  are  taken  in  their  natural 

'Decision  51,  p.  274  (May  3,  1902). 


§7]  PLURALITY  OF  MEANING  199 

meaning.  If,  however,  one  or  more  of  these  expressions 
are  taken  in  a  metaphorical  sense,  or  if  one  broadens 
some  term  beyond  the  ordinary  meaning,  or  contracts 
to  a  narrower  sense,  possibly  there  may  be  six  more  ideas 
found  in  its  provisions.  Now  the  problem  arises  whether 
a  lawyer  may  in  such  a  case  elect  to  consider  these  ad- 
ditional meanings  also,  assuming  that  for  once  the  mode 
of  expression  chosen  has  been  metaphorical,  awkward, 
and  unusual.  The  answer  will  have  to  be  in  the  affirma- 
tive. For,  as  in  ordinary  daily  life,  so  also  in  the  statutes 
the  mode  of  expression  selected  is  by  no  means  always 
the  most  ordinary,  trite,  and  literal.  If  one  were  to  use 
words  always  in  the  most  common  and  overworked 
sense,  the  language  of  the  statutes  would  lose  all  individ- 
uality and  become  schoolmasterly,  stiff,  and  pedantic. 
Moreover,  a  wooden  style,  careful  to  give  to  each  word 
the  exact  sense  of  daily  conversation,  would  frequently 
be  incapable  of  .expressing  some  significant  idea  at  all, 
or  at  least  only  by  horrible  circumlocutions  and  tortuous 
clauses.  This  would  make  the  statute  so  c  wkward  as  to 
resemble  some  linguistic  monster.  Witness  here  the  form 
of  English  statutes  which  are  often  absolutely  aston- 
ishing in  this  respect.  Now  this  ought  never  to  be  the 
case;  for  a  statute  ought  to  be  also  a  literary  work  of  art, 
so  as,  to  some  extent  at  least,  to  enter  into  the  conscious 
memory  of  the  people.  Otherwise  it  can  never  become 
part  and  parcel  of  the  popular  mind  but  must  remain 
strange  and  repellant.  That,  however,  would  work 
great  injury  to  the  legal  education  of  the  people. 

From  all  this  we  may  draw  the  following  conclusion: 
in  selecting  the  true  meaning,  the  lawyer  must  bear  in 
mind  that  the  words  may  perhaps  be  metaphorical 
and  unusual,  so  as  to  express  their  full  meaning  only 
approximately  if  taken  literally;  very  much  as  one 
trying  to  explain  the  functions  of  a  machine  must  bear 


200  KOHLER:  INTERPRETATION  OF  LAW  [CH.  VI 

in  mind  that  the  machine  may  have  imperfections,  pos- 
sibly for  no  reason  but  because  it  had  been  put  together 
in  a  hurry,  or  because  a  greater  degree  of  precision  was 
not  required. 

It  is  customary  to  speak  of  broad  and  narrow  interpre- 
tation. These,  however,  are  but  special  cases.  In  other 
ways  also  the  expression  may  fail  to  cover  the  meaning 
exactly,  both  in  respect  of  quantity  and  quality.  One 
ought,  therefore,  to  speak  not  merely  of  broad  or  narrow 
interpretation,  but  rather  of  interpretation  which  gives 
to  the  statute  a  significance  apart  from  the  inexact 
expressions  of  the  text.  This  significance  may  be  greater 
or  less  than  the  words  may  express,  but  it  is  also  possible 
for  it  to  change  qualitatively.  That  would  be  a  poor 
interpretation  which  could  at  most  stay  more  or  less 
within  the  literal  text  but  could  never  go  entirely  beyond 
the  literal  meaning  and  introduce  a  new  significance. 
For  instance,  where  a  statute  speaks  of  "objection," 
we  must  be  permitted  to  attach  to  the  word  "objection" 
in  a  given  case  a  meaning  other  than  the  ordinary  legal 
significance.  We  may  conclude  that  the  term  is  used 
untechnically  and  may  include  the  rescission  of  a  con- 
tract. Another  illustration  is  the  term  "relative  in- 
validity" of  a  patent.  As  used  in  the  patent  statute  it 
does  not  mean  invalidity  at  all  but  something  entirely 

different.8 

********* 

§  8.  Interpretation  of  Unwritten  Law.  It  is  not  only 
the  written  but  also  the  customary  law  which  requires 
interpretation;  but  the  method  is  quite  different  in  the 
latter.  Here  it  becomes  necessary  to  gather  from  the 
various  rules  of  customary  law  the  principle,  and  to  test 
by  this  principle  the  true  nature  of  any  particular  usage. 
Above  all  in  the  case  of  the  customary  practice  of  the 

•  See  my  "Handbuch  des  Patentrechts,"  pp.  396  seq. 


§8]  UNWRITTEN  LAW  201 

courts  will  the  interpreter  have  to  consider  what  reason 
lies  at  the  bottom  of  any  decision.  Perhaps  two  or  three 
reasons  are  given  in  an  opinion,  and  one  of  these  is  based 
on  the  customary  practice.  The  question  will  then  arise 
whether  the  custom  is  the  real  reason  which  led  the  court 
to  decide  as  it  did,  or  whether  it  was  nothing  but  a  more 
or  less  weighty  consideration  which  merely  influenced 
but  did  not  determine  the  decision.  This  is  the  way  in 
which  the  opinions  of  the  courts  are  interpreted  in 
England  and  America,  in  order  to  discover  whether  some 
rule  is  authoritatively  enunciated.  At  the  same  time,  the 
question  is  then  considered  whether  such  rule  is  applicable 
only  to  the  particular  state  of  facts  found  in  the  case  at 
bar,  o'r  whether.it  is  of  so  general  a  nature  as  to  apply 
also,  even  though  one  or  the  other  of  the  details  of  fact 
were  lacking. 


202  POUND:  COURTS  AND  LEGISLATION  [Cn.  VII 

CHAPTER  VII 
COURTS  AND   LEGISLATION 

BY   ROSCOE    POUND1 

Let  me  begin  with  a  quotation : 

"[There]  is  no  doubt  but  that  our  law  and  the  order 
thereof  is  over-confuse[d].  It  is  infinite  and  without 
order  or  end.  There  is  no  stable  ground  therein  nor  sure 
stay ;  but  every  one  that  can  color  reason  maketh  a  stop 
to  the  best  law  that  is  before  time  devised.  The  subtlety 
of  one  serjeant  shall  [make]  inert  and  destroy  all  the 
judgments  of  many  wise  men  before  time  received. 
There  is  no  stable  ground  in  our  common  law  to  lean  unto. 
The  judgments  of  years  be  infinite  and  full  of  much  con- 
troversy. .  .  .  The  judges  are  not  bound 
to  follow  them  as  a  rule,  but  after  their  own  liberty  they 
have  authority  to  judge,  according  as  they  are  instructed 
by  the  Serjeants,  and  as  the  circumstance  of  the  case  doth 
them  move.  And  this  maketh  judgments  and  processes 
of  our  law  to  be  without  end  and  infinite;  this  causeth 
suits  to  be  long  in  decision.  Therefore,  to  remedy  this 
matter  groundly,  it  were  necessary  in  our  law  to  use  the 
same  remedy  that  Justinian  did  in  the  law  of  the  Romans, 
to  bring  this  infinite  process  to  certain  ends,  to  cut  away 
these  long  laws,  and  by  the  wisdom  of  some  politic  and 
wise  men  institute  a  few  and  better  laws  and  ordinances."2 

1  [Carter  Professor  of  Jurisprudence  in  Harvard  University,  and  mem- 
ber of  Editorial  Committee  for  this  Series.  Address  delivered  before  the 
American  Political  Science  Association  at  Buffalo.  December  28,  1911. 
Reprinted  from  the  American  Political  Science  Review,  vol.  vii,  no.  3, 
pp.  361  seq.,  August  1915.  Some  additions  have  been  made  to  the 
notes.] 

*  Maitland,  "English  Law  and  the  Renaissance,"  42.        v 


A  PERENNIAL  PROBLEM  203 

Such  are  the  words  Starkey  puts  into  the  mouth  of 
Reginald  Pole  in  a  dialogue  submitted  to  Henry  VIII. 
If  in  large  part  they  have  a  familiar  sound,  and  need 
only  a  dress  of  modern  English  to  pass  for  a  clipping 
from  a  recent  periodical,  an  emanation  from  the  Ameri- 
can legal  muckraker,  it  is  partly  because  the'  relation  of 
judging  to  lawmaking  is  a  perennial  problem  and  partly 
because  that  time  was  (as  the  present  is  also)  a  period  of 
legislation  following  upon  one  of  common  law.  In  a 
later  period  of  legislative  activity,  after  an  ineffectual 
attempt  to  reform  the  law  and  procedure  of  England, 
Cromwell  was  forced  to  say,  referring  to  bench  and  bar, 
"the  sons  of  Zeruiah  are  too  hard  for  us."  In  still  a 
later  period  of  legislation,  the  period  of  the  legislative 
reform  movement,  Bentham  was  wont  to  say  that  the 
law  was  made  by  "Judge  &  Company"3  —  i.e.  by  the 
bench  and  bar  —  and  to  accuse  the  lawyer  of  chuckling 
"over  the  supposed  defeat  of  the  legislature  with  a  fond 
exultation  which  all  his  discretion  could  not  persuade 
him  to  suppress."  To-day  the  relation  of  courts  to  legis- 
lation has  become  a  world-wide  question,  following  the 
development  of  legislative  lawmaking  through  modern 
parliaments.  On  the  Continent  the  last  decade  has 
seen  the  rise  of  a  great  juristic  literature  upon  the  subject. 
Whether,  as  in  France,  new  demands  are  made  upon  old 
codes,  which  have  acquired  a  settled  gloss  of  doctrine 
and  jurisprudence,  or,  as  in  Germany,  the  principles  of  a 
new  code  await  juristic  development  at  many  important 
points,  or,  as  in  the  United  States,  a  rapidly  growing 
body  of  written  law  is  adjusting  to  a  stable  and  none  too 
flexible  body  of  traditional  principles,  —  under  one  name 
or  another,  juridical  method  has  become  a  chief  subject 
of  discussion.  Even  our  problem  of  judicial  power 
with  respect  to  unconstitutional  legislation  has  ceased 

»  "Works"  (Bowring  edition),  v.  369. 


204  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

to  be  local.  Marbury  v.  Madison  has  been  cited  and 
followed  by  a  court  of  Roman-Dutch  lawyers  in  South 
Africa.4  With  the  adoption  of  a  written  constitution, 
the  subject  has  become  acute  in  Australia  and  Aus- 
tralian courts  and  lawyers  are  insisting  upon  the 
American  doctrine  in  the  face  of  a  decision  of  the  Privy 
Council  in  England  to  the  contrary.5  If  we  bear  in  mind 
that  the  relation  of  courts  to  legislation  is  neither  a  new 
question  nor  a  local  question,  we  shall  be  able  to  look 
upon  more  than  one  aspect  of  the  matter  with  greater 
equanimity. 

According  to  the  beautifully  simple  theory  of  separa- 
tion of  powers  three  wholly  distinct  departments  have 
for  their  several  and  exclusive  functions  to  make  laws,  to 
execute  laws,  to  apply  laws  to  controversies  calling  for 
judicial  decision.  It  is  a  commonplace  that  a  complete 
separation  of  this  sort  has  never  existed  anywhere  and 
that  the  lines,  as  we  draw  them  in  our  constitutional 
law,  are  historical  rather  than  analytical.  But  the  theory 
itself,  so  far  as  it  confines  the  judicial  function  to  mere 
application  of  a  rule  formulated  in  advance  by  an  extra- 
judicial  agency,  proceeds  upon  an  eighteenth  century 
conception  of  law  and  of  lawmaking  which  we  cannot 
accept  to-day. 

Jurists  of  the  eighteenth  century  had  no  doubt  that  a 
system  of  law,  complete  in  every  detail,  might  be  con- 
structed for  any  country  by  any  competent  thinker  by 
deduction  from  abstract  principles.  They  thought  of 

<  Brown  v.  Leyds,  14  Cape  Law  Journal,  94;  "The  Courts  and  the 
Legislature,"  14  Cape  Law  Journal,  109;  "The  Judicial  Crisis  in  the 
Transvaal,"  14  Law  Quarterly  Rev.  343.  Cf .  a  similar  case  in  Roumania, 
6  Am.  Pol.  Sci.  Rev.  456. 

\Deakin  v.  Webb,  1  Com.  L.  R.  619;  Baxter  v.  Com'rs,  4  Com. 
L.  R.  41,  63,  81;  Cooper  v.  Com'r,  4  Com.  L.  R.  1304;  Federated  Ass'n 
v.  New  S.  W.  Ass'n,  4  Com.  L.  R.  488;  Rex  v.  Barger,  6  Com.  L.  R. 
41,  63,  81.  See  Webb  v.  Outrim,  [1907]  A.  C.  81 ;  Moore,  "The  Common- 
wealth of  Australia"  (2  ed.),  chap.  4.  Cf.  In  re  Award,  26  New  Zea- 
land S.  C.  394. 


THE  NATURAL  LAW  TRADITION         205 

the  legal  system  as  a  structure  which  might  be  built  over 
again  at  pleasure  in  accordance  with  one's  ideal  of  right. 
Hence  their  conception  of  legal  science  was  a  discovery 
and  formulation  of  this  ideal,  as  something  unchangeable 
and  independent  of  human  recognition,  whereby  they 
might  hand  over  to  the  legislator  a  model  code,  to  the 
judge  a  touchstone  of  pure  law,  to  the  citizen  an  infallible 
guide  to  conduct.  So  long  as  men  believed  in  this  abso- 
lute natural  law,  they  were  justified  in  laying  down  that 
it  was  for  the  legislator  to  discover  and  enact  this  model 
code  and  for  the  judge  simply  to  apply  it.  And  even  after 
they  ceased  to  believe  in  it,  two  theories  which  had  great 
currency  served  to  keep  alive  the  resulting  conception  of 
the  judicial  function.  One  was  the  tradition  of  absolute 
legal  principles,  discovered  and  applied  by  courts,  but 
existing  prior  to  and  independent  of  all  judicial  decision. 
Laid  down  by  Blackstone,  this  notion  that  judicial 
decisions  were  merely  evidence  of  law,  or  of  that  part  of 
the  law  not  evidenced  by  statutes,  was  accepted  as  a 
fundamental  proposition.  Austin  characterized  it  justly 
as  "the  childish  fiction,  employed  by  our  judges,  that 
judiciary  or  common  law  is  not  made  by  them,  but  is  a 
miraculous  something,  made  by  nobody,  existing,  I 
suppose,  from  eternity,  and  merely  declared  from  time  to 
time  by  the  judges."6  Historically,  it  represents  the 
Germanic  conception  of  law,  the  "sighing  of  the  creature 
for  the  justice  and  truth  of  his  creator"7  which,  Heusler 
tells  us,  is  to  be  found  in  every  law  book  of  the  middle 
ages.  Such  a  tradition,  well  established  in  the  eighteenth 
century,  lent  itself  at  once  to  the  juristic  theory  of  that 
time  and  to  the  resulting  theory  of  the  judicial  office. 
Moreover,  it  was  reinforced  presently  from  another 
quarter.  After  the  historical  jurists  had  overthrown 

•  "Jurisprudence"  (4  ed.),  655. 

'  "Institutionen  des  deutschen  Privatrechts,"  §  1. 


206  POUND:  COURTS  AND  LEGISLATION  [CH.VII 

the  eighteenth  century  juristic  theory,  they  acquiesced 
in  a  learned  tradition  on  the  Continent  which  confined 
historical  study  to  the  texts  of  the  Roman  law  and  they 
created  a  learned  tradition  in  America  which  confined 
the  jurist  to  the  classical  common  law.  Accordingly, 
ostensibly  the  judicial  function  remained  purely  one  of 
application.  Men  differed  only  as  to  what  was  to  be 
applied.  To  some  it  was  the  command  of  the  sovereign, 
expressed  normally  in  legislation.  To  others  it  was  natural 
law,  which  might  at  any  time  be  revealed  as  a  whole 
to  the  legislator  and  promulgated  in  a  code.  To  others  it 
was  the  principles  of  the  common  law,  evidenced  by 
prior  decisions  or  declared  by  statutes.  To  others  it  was 
the  body  of  legal  principles  implicit  in  the  sources  to 
which  the  learned  tradition  confined  historical  study  and 
derived  therefrom  by  legal  reasoning.  In  any  event 
it  was  assumed  that  the  judge  in  every  sort  of  case  merely 
applied  a  rule  which  had  a  prior  independent  existence. 
A  German  writer  has  put  the  received  theory  thus: 
The  court  is  an  automaton,  a  sort  of  judicial  slot  machine. 
The  necessary  machinery  has  been  provided  in  advance 
by  legislation  or  by  received  legal  principles,  and  one  has 
but  to  put  in  the  facts  above  and  draw  out  the  decision 
below.  True,  he  says,  the  facts  do  not  always  fit  the 
machinery,  and  hence  we  may  have  to  thump  and  joggle 
the  machinery  a  bit  in  order  to  get  anything  out.  But 
even  in  extreme  cases  of  this  departure  from  the  purely 
automatic,  the  decision  is  attributed  not  at  all  to  the 
thumping  and  joggling  process  but  solely  to  the  machine.3 
It  goes  without  saying  that  such  a  conception  of  the  pro- 
cess of  judicial  decision  cannot  stand  the  critical  scrutiny 
to  which  all  legal  and  political  institutions  are  now  sub- 
jected. Men  insist  upon  knowing  where  the  preexisting 
rule  was  to  be  found  before  the  judges  discovered  and 

8  Kantorowicz,  "Rechtswissenschaft  und  Soziologie,"  5. 


MECHANICAL  JURISPRUDENCE          207 

applied  it,  in  what  form  it  existed,  and  how  and  whence 
it  derived  its  form  and  obtained  its  authority.    And  when, 
as  a  result  of  such  inquiries,  the  rule  seems  to  have 
sprung  full-fledged  from  the  judicial  head,  the  assump- 
tion that  the  judicial  function  is  one  of  interpretation 
and  application  only,  leads  to  the  conclusion  that  the 
courts  are  exercising  a  usurped  authority.     The  true 
conclusion  is  rather  that  our  theory  of  the  nature  of  the 
judicial  function  is  unsound.     It  is  a  fiction,  born  in 
periods  of  absolute  and  unchangeable  law.     If  all  legal 
rules  are  contained  in  immutable  form  in  holy  writ  or 
in  twelve  tables  or  in  a  code  or  in  a  received  corpus  juris 
or  in  a  custom  of  the  realm  whose  principles  are  authori- 
tatively evidenced  by  a  body  of  prior  decisions,  not  only 
must  new  situations  be  met  by  deduction  and  analogical 
extension   under  the  guise  of  interpretation,   but  the 
inevitable  changes  to  which  all  law  is  subject  must  be 
hidden  under  the  same  guise.    To-day,  when  all  recognize, 
nay  insist,  that  legal  systems  do  and  must  grow,  that 
legal  principles  are  not  absolute,  but  are  relative  to  time 
and  place,  and  that  juridical  idealism  may  go  no  further 
than  the  ideals  of  an  epoch,  the  fiction  should  be  dis- 
carded.    The  analytical  jurists  did  a  great  service  to 
legal  science  when  they  exposed  this  fiction,  though  their 
conclusion  that  a  complete  code  should  be  enacted  in 
order  to  put  an  end  to  the  process  of  judicial  lawmaking 
shows  that  they  saw  but  half  of  the  truth.    For  the  appli- 
cation of  law  is  not  and  ought  not  to  be  a  purely  mechan- 
ical process.     Laws  are  not  ends  in  themselves;    they 
are  means  toward  the  administration  of  justice.    Hence 
within  somewhat  wide  limits  courts  must  be  free  to  deal 
with  the  individual  case  so  as  to  meet  the  demands  of 
justice  between  the  parties.    Any  considerable  narrowing 
of  these  limits,  any  confining  of  the  judicial  function  by 
too  many  hard  and  fast  rules,  soon  defeats  the  purpose 


208  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

for  which  law  exists.  Application  of  law  must  involve 
not  logic  merely  but  a  measure  of  discretion  as  well. 
All  attempts  to  eradicate  the  latter  element  and  to  make 
the  law  purely  mechanical  in  its  operation  have  ended 
in  failure.  Justice  demands  that  instead  of  fitting  the 
cause  to  the  rule,  we  fit  the  ruje  to  the  cause.  "Whoever 
deals  with  juristic  questions,"  says  Zitelmann,  "must  al- 
ways at  the  same  time  be  a  bit  of  a  legislator"9;  that  is, 
to  a  certain  extent  he  must  make  law  for  the  case  before 
him. 

Our  first  step,  then,  in  considering  the  relation  of 
courts  to  legislation,  must  be  to  analyze  the  judicial 
function. 

Judicial  decision  of  a  controversy,  the  facts  being 
ascertained,  has  been  said  to  involve  three  steps:  (1) 
finding  the  rule  to  be  applied,  (2)  interpreting  the  rule, 
(3)  applying  the  rule  to  the  cause.  The  first  process  may 
consist  merely  in  laying  hold  of  a  prescribed  text  of  code 
or  statute,  in  which  case  it  remains  only  to  determine  the 
meaning  of  the  rule  and  to  apply  it.  More  commonly 
the  first  process  involves  choice  among  competing  texts 
or  choice  from  among  competing  analogies,  so  that  the 
several  rules  must  be  interpreted  in  order  that  intelligent 
selection  may  be  made.  Often  such  interpretation,  using 
the  term  to  mean  a  genuine  interpretation,  shows  that 
no  existing  rule  is  adequate  to  a  just  decision  and  it 
becomes  necessary  to  provide  one  for  the  time  being. 
The  rule  so  provided  may  or  may  not  become  a  prece- 
dent for  like  cases  in  the  future.  In  any  event,  this 
process  has  gone  on  and  still  goes  on  in  all  systems  of 
law,  no  matter  what  their  form  and  no  matter  how  com- 
pletely in  their  juristic  theory  they  limit  the  function  of 
adjudication  to  the  purely  mechanical. 

•  Zitelmann,  "Die  Gefahren  des  biirgerlichen  Gesetzbuches  fur  die 
Rechtswissenschaft,"  19. 


THREE  STEPS  209 

Perhaps  the  classical  instance  of  the  process  referred 
to  is  to  be  found  in  article  5  of  the  French  Civil  Code. 
That  article  reads  as  follows:  "Judges  are  forbidden, 
when  giving  judgment  in  the  cases  which  are  brought  be- 
fore them,  to  lay  down  general  rules  of  conduct  or  decide 
a  case  by  holding  it  was  governed  by  a  previous  decision." 
Its  purpose  was,  as  we  are  told  by  an  authoritative 
commentator,  to  prevent  the  judges  from  forming  a 
body  of  case-law  which  should  govern  the  courts  and  to 
prevent  them  from  "correcting  by  judicial  interpretations 
the  mistakes  made  in  the  [enacted]  law."10  After  a  cen- 
tury of  experience  in  the  endeavor  to  carry  out  this 
purpose,  French  jurists  are  now  agreed  that  the  article 
in  question  has  failed  of  effect.  To-day  the  elementary 
books  from  which  law  is  taught  to  the  French  students, 
in  the  face  of  the  code  and  of  the  Roman  tradition,  do 
not  hesitate  to  say  that  the  course  of  judicial  decision  is 
a  form  of  law.11 

All  of  the  three  steps  above  described  are  commonly 
confused  under  the  name  of  interpretation,  because,  in 
primitive  times,  when  the  law  is  taken  to  be  God-given 
and  unchangeable,  the  most  that  may  be  permitted  to 
human  magistrates  is  to  interpret  the  sacred  text.  The 
analytical  jurists  first  pointed  out  that  finding  a  new  rule 
and  interpreting  an  existing  rule  were  distinct  processes, 
and  Austin  distinguished  them  as  spurious  interpretation 
and  genuine  interpretation  respectively,  since  his  belief 
in  the  possibility  of  a  complete  body  of  enacted  rules, 
sufficient  for  every  cause,  led  him  to  regard  the  former 

10  Laurent,  "Droit  civil  Francais,"  i,  §§250-262. 

11  Baudry-Lacantinerie,  " Precis  de  droit  civil"  (8 ed.),  preface;  Capitanl, 
"Introduction  a  1'etude  du  droit  civil"  (3  ed.),  30ff.    See  also  Demogue, 
"Notions  fondamentales  du  droit  prive,"  216  ff.;  Esmein,  "La  jurispru- 
dence et  la  doctrine,"  Revue  trimestrielle  de  droit  civil,  i,  1;    Saleilles, 
"Le  code  civil  et  la  methode  historique,"  "Livre  du  centennaire  du  code 
civil,"  i,  97;    G&ny,  "Methode  d'interpretation,"    §§39-59.      [See  also 
ch.  i  supra.] 


210  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

as  out  of  place  in  modern  law.12  Indeed  he  was  quite  right 
in  insisting  that  spurious  interpretation  as  a  fiction  was 
wholly  out  of  place  in  legal  systems  of  to-day.  But 
experience  has  shown,  what  reason  ought  to  tell  us, 
that  this  fiction  was  invented  to  cover  a  real  need  in  the 
judicial  administration  of  justice  and  that  the  providing 
of  a  rule  by  which  to  decide  the  cause  is  a  necessary 
element  in  the  determination  of  all  but  the  simplest  con- 
troversies. More  recently  the  discussions  over  the  juridi- 
cal handling  of  the  materials  afforded  by  the  modern 
codes  has  led  Continental  jurists  to  distinguish  applica- 
tion of  rules  to  particular  causes  from  the  more  general 
problem  of  interpretation.  Indeed,  under  the  influence 
of  the  social-philosophical  and  sociological  jurists,  who 
have  insisted  that  the  essential  thing  in  administration 
of  justice  according  to  law  is  a  reasonable  and  just 
solution  of  the  individual  controversy,  application  of 
law  has  become  the  central  problem  in  present-day  legal 
science. 

Given  the  three  steps  in  the  decision  of  causes,  as 
courts  now  proceed,  namely,  finding  of  rules,  interpre- 
tation of  rules,  and  application  to  particular  contro- 
versies of  the  rules  when  found  and  interpreted,  let  us 
consider  the  relation  of  the  courts  to  legislation  with 
reference  to  each. 

It  has  been  a  favorite  notion  of  legislators  that  the 
finding  of  law  could  be  reduced  to  a  simple  matter  of 
genuine  interpretation;  that  a  body  of  enacted  rules 
could  be  made  so  complete  and  so  perfect  that  the  judge 
would  have  only  to  select  the  one  made  in  advance  for 
the  case  in  hand,  interpret  it  and  apply  it.13  As  has  been 

12  "Jurisprudence"  (4  ed.),  1026-1036.  See  my  paper,  "Spurious 
Interpretation,"  7  Columbia  Law  Rev.  379. 

11  "These  decisions  leave  the  legitimate  business  of  the  country  in 
a  condition  of  uncertainty.  .  .  .  This  condition  I  have  met  by  a 
bill  which  I  have  introduced  in  the  Senate.  It  enumerates  in  plain 


FINDING  THE  LAW  211 

said,  this  was  the  eighteenth  century  idea.  Thus  in  the 
code  of  Frederick  the  Great  the  "intention  was  that  all 
contingencies  should  be  provided  for  with  such  careful 
minuteness  that  no  possible  doubt  could  arise  at  any 
future  time.  The  judges  were  not  to  have  any  discretion 
as  regards  interpretation,  but  were  to  consult  a  royal 
commission  as  to  any  doubtful  points,  and  to  be  abso- 
lutely bound  by  their  answer.  This  stereotyping  of  the 
law  was  in  accordance  with  the  doctrines  of  the  law  of 
nature,  according  to  which  a  perfect  system  might  be 
imagined,  for  which  no  changes  would  ever  become  neces- 
sary, and  which  could,  therefore,  be  laid  down  once 
for  all,  so  as  to  be  available  for  any  possible  combina- 
tion of  circumstances."14  Bentham  and  Austin,  who 
saw  clearly  enough  that  the  doctrine  of  natural  law  of 
the  eighteenth  century  was  untenable,  none  the  less 
had  the  same  idea  of  the  possibility  of  a  perfect  code, 
stating  the  existing  law  in  complete  detail.  Accordingly 
Austin  named  as  a  defect  of  the  French  Civil  Code  what 
has  proved  to  be  the  chief  source  of  its  success,  namely, 
that  it  was  not  intended  to  be  complete  but  was 
intended  to  be  supplemented  and  explained  by  various 
subsidia.15 

As  we  know,  the  historical  school  overthrew  the  notion 
that  there  could  be  a  complete  and  final  legislative  state- 
ment of  the  law.  Unhappily  the  historical  jurists  went 
too  far  in  the  opposite  direction.  They  assumed  that 
conscious  human  effort  to  shape  and  so  to  improve  the 

English  every  known  practice  and  expedient  through  which  combinations 
have  stifled  competition,  and  prohibits  anyone  from  engaging  in  them." 
—  Senator  La  Follette  in  American  Magazine,  July,  1912. 

»  Schuster,  "The  German  Civil  Code,"  12  Law  Quarterly  Rev.  17,  22. 
As  to  this  notion  of  authentic  interpretation,  the  maxim  "eiusest  interpre- 
tari  legem  cuius  est  condere"  and  the  breakdown  of  non-judicial  inter- 
pretation by  legislative  bodies  and  royal  commissions,  see  Geny,  "Methode 
d'interpretation,"  §§40-45. 

«  "Jurisprudence"  (4  ed.),  695. 


212  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

law  was  futile.  They  conceived  that  the  law  developed 
through  the  development  of  the  genius  of  a  people  and  its 
gradual  expression  in  legal  institutions.  Hence  they 
took  it  to  be  the  duty  of  the  jurist  to  study  the  course 
of  this  development  and  to  trace  its  effects  in  existing 
legal  systems,  but  in  no  wise  to  attempt  to  interfere 
therewith,  since  to  essay  conscious  lawmaking  was  to 
attempt  the  impossible.  For  many  reasons  this  theory 
became  very  popular  in  America,  and  to  a  large  extent 
it  still  holds  its  ground  with  us,  after  it  has  been  rejected 
elsewhere  in  consequence  of  the  rise  of  the  social-philo- 
sophical jurists.  Thus  we  have  two  conflicting  theories 
of  the  relation  of  courts  to  lawmaking.  On  the  one  hand , 
the  older,  analytical  theory,  heir  in  this  respect  to  the 
eighteenth  century,  holds  that  a  complete  legislative 
statement  of  the  law  upon  any  subject  may  be  made  in 
advance,  and  that  judicial  lawmaking  is  abnormal  and 
due  only,  so  far  as  it  may  be  justified,  to  defects  in  the 
legislative  prevision.  On  the  other  hand,  the  historical 
theory  regards  such  legislative  attempts  as  useless,  as 
attempts  to  make  what  cannot  be  made,  and  hence  looks 
upon  development  of  the  law  by  juristic  speculation  and 
judicial  decision  as  the  normal  and  on  the  whole  the  only 
practicable  method.  Neither  of  these  theories  expresses 
the  whole  truth.  But  the  rise  of  modern  legislation  and 
resulting  imperative  notions  of  law  serve  to  keep  alive 
the  former,  while  the  exigencies  of  administering  the 
modern  codes  upon  the  Continent  and  experience  of 
applying  modern  statutes  in  England  and  America  serve 
to  keep  alive  the  latter,  in  one  form  or  another,  as  a 
tenet  of  the  legal  profession.  For  instance,  it  is  justly 
thought  a  merit  of  the  new  German  Civil  Code  that  it 
makes  no  attempt  to  be  a  perfect  code  in  the  eighteenth 
century  sense.  But  there  are  German  expositors  of  the 
code  who  object  to  its  generality  and  to  the  margin  for 


THE  RISE  OF  LEGISLATION  213 

development  which  it  leaves  and  accuse  it  of  being  a  mere 
institutional  textbook.16 

In  truth  the  changed  attitude  toward  legislation  in- 
volved in  the  breakdown  of  Savigny's  historical  school, 
much  as  it  is  to  be  welcomed  in  that  it  gives  us  much- 
needed  faith  in  the  efficacy  of  effort  in  improvement  of 
the  law,  is  bringing  about  a  return  to  absolute  theories  of 
lawmaking  which  in  more  than  one  respect  is  unfortu- 
nate. It  has  been  said  truly  that  the  activity  of  legisla- 
tures is  a  fundamental  fact  of  modern  law.  Demos  will 
legislate,  and  any  theory  that  seeks  to  put  a  check  upon 
this  activity  will  dash  in  vain  against  obstinate  facts. 
But  it  is  no  less  true  that  much  if  not  most  of  this  legis- 
lative activity  will  prove  futile,  as  most  of  it  has  proved 
in  the  past,  so  long  as  it  proceeds  upon  the  assumption 
that  legislators  may  lay  out  a  full  and  complete  scheme 
in  advance,  which  will  suffice  for  all  controversies,  so 
long  as  it  assumes  that  the  general  principles  of  the  law 
and  the  rules  and  doctrines  of  the  legal  system  into  which 
the  legislative  enactment  is  to  be  fitted  and  in  which  it 
must  take  its  place  may  be  neglected,  and  so  long  as  it 
proceeds  upon  the  idea  that  arbitrary  expressions  of  the 
sovereign  will  may  be  given  the  quality  of  law  by  a 
prefatory  "be  it  enacted."  A  lesson  of  legal  history  which 
must  be  learned  both  by  legislators  and  by  courts  is  that 
the  lawmaker  must  not  be  over-ambitious  to  lay  down 
universal  rules. 

Since  the  fundamental  idea  of  law  is  that  of  a  rule  or 
principle  underlying  a  series  of  judicial  decisions,  it  is 
obvious  that  the  power  of  finding  the  law,  which  a  tribu- 
nal must  be  allowed  to  exercise,  is  to  be  governed  by  some 
sort  of  system,  or  we  shall  have  a  personal  rather  than  a 

l'Endemann,  "Lehrbuch  des  biirgerlichen  Rechts,"  i,  §5.  See  Crome, 
"System  des  deutschen  biirgerlichen  Rechts,"  i,  §§9,  11;  Kohler,  "Lehr- 
buch des  biirgerlichen  Rechts,"  i,  §  1. 


214  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

legal  administration  of  justice.  The  first  conscious 
attempt  to  provide  such  a  system  is  usually  a  complete 
scheme  of  legislation.  But  such  schemes  are  soon  out- 
grown and  are  never  wholly  sufficient.  Hence  three 
purely  juristic  methods  of  systematizing  the  judicial 
finding  of  law  have  arisen.  (1)  First  we  may  put  what 
has  been  called  a  jurisprudence  of  conceptions.  Certain 
fundamental  conceptions  are  worked  out  from  traditional 
legal  principles,  and  the  rules  for  the  cause  in  hand  are 
deduced  from  these  conceptions  by  a  purely  logical 
process.  The  merit  of  this  method  is  that  it  leads  to 
certainty,  and  whenever,  as  in  the  nineteenth  century, 
the  demands  of  business  and  of  property  are  paramount, 
this  method  is  the  prevailing  one.  (2)  A  second  method 
is  to  take  the  rules  of  a  traditional  system  or  the  sections 
of  a  legislative  system  as  premises  and  to  develop  these 
premises  in  accordance  with  some  theory  of  the  ends  to 
be  met  or  of  the  relation  which  they  should  bear,  when 
applied,  to  the  social  conditions  of  the  time  being.  Just 
now  Continental  legal  literature  is  full  of  suggestions  as 
to  the  manner  in  which  such  a  method  should  be  worked 
out.  (3)  A  third  method  is  the  purely  empirical  one  of 
our  Anglo-American  law;  as  Mr.  Justice  Miller  put  it, 
the  process  of  judicial  inclusion  and  exclusion.  This 
method,  in  appearance  crude  and  unscientific,  is  none  the 
less  justified  by  its  results.  It  is,  in  truth,  the  method  of 
the  natural  scientist,  of  the  physician  and  of  the  engineer, 
the  method  of  trial-hypothesis  and  confirmation.  The 
tentative  results  of  a  priori  reasoning  are  corrected  con- 
tinually by  experience.  A  cautious  advance  is  made  at 
some  point.  If  just  results  follow,  the  advance  goes  for- 
ward and  in  time  a  rule  is  developed.  If  the  results  are 
not  just,  a  new  line  is  taken,  and  so  on  until  the  best 
line  is  discovered.  With  all  its  defects,  this  method  has 
stood  the  test  of  use  better  than  any  other.  Speaking 


WHAT  LEGISLATION  MAY  DO  215 

of  this  method  and  of  its  results  in  English  law,  Kohler, 
who  must  be  pronounced  the  leader  among  modern  jurists, 
says:  "Their  science  does  not  go  beyond  the  few  neces- 
sary beginnings,  yet  their  administration  of  law  far  sur- 
passes ours."17 

If  judicial  finding  of  law  cannot  be  obviated  by  any 
complete  scheme  of  legislation  and  may  be  systematized 
sufficiently  by  known  juristic  methods,  it  would  seem 
that  legislation  ought  to  seek  chiefly  to  provide  new  and 
better  premises  from  which  courts  may  proceed  rather 
than  to  tie  the  courts  down  rigidly  by  a  mass  of  rules. 
This  providing  of  new  and  better  premises  is  a  possible 
task  and  a  needed  one  in  .all  periods  of  transition.  The 
slow  growth  of  the  law  by  judicial  inclusion  and  exclusion 
and  discovery  of  the  sound  rule  at  the  expense  of  many 
litigants  becomes  intolerable  in  such  periods.  At  many 
points  a  more  rapid  adjustment  of  the  legal  system  to 
the  needs  of  the  community  becomes  imperative.  More- 
over, it  happens  too  often  in  our  Anglo-American  case 
law  that  through  over-ambition  of  our  courts  to  lay  down 
universal  rules  our  empirical  method  is  replaced  in  many 
portions  of  the  legal  system  by  a  jurisprudence  of  con- 
ceptions. In  such  cases,  new  premises  may  be  required 
because  society  cannot  await  the  gradual  shifting  process 
which  would  otherwise  bring  about  a  readjustment  of  the 
law.  But  two  points  are  to  be  observed  in  this  connection . 

In  the  first  place,  the  legislator  must  bear  in  mind 
that  his  enactment  will  not  stand  alone.  It  must  take 
its  place  in  and  become  a  part  of  an  entire  legal  system. 
Hence  he  must  not  neglect  the  relation  which  his  statute 
will  bear  to  the  general  body  of  the  law.  Rules  cannot 
stand  alone  in  a  legal  system.  So  long  as  human  fore- 
sight is  finite  and  the  variety  of  human  actions  infinite, 

17  Geleitwort  to  Rogge,  "Methodologische  Vorstudien  zu  einer  Kritik 
des  Rechts,"  iii. 


216  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

legal  reason  must  be  the  measure  of  decision  of  a  great 
part  of  the  causes  that  come  before  courts.  This  legal 
reason,  exercised  in  one  of  the  three  ways  we  have 
considered,  postulates  a  system  of  rules  or  principles. 
Disturbance  of  this  system  produces  corresponding  dis- 
turbance of  the  course  of  legal  reasoning,  and  sooner  or 
later  the  disturbing  element  yields  to  the  general  system  or 
else  the  system  gives  way  thereto.  In  any  event,  nothing 
has  so  profound  an  effect  upon  the  practical  workings 
of  an  enactment  as  its  relation  to  the  legal  system  into 
which  it  is  to  be  set  and  the  mode  in  which  its  adjustment 
thereto  has  been  studied  and  provided  for.  This  is  a 
matter  of  much  more  moment  than  provision  for  every 
detail  of  application  that  may  be  foreseen. 

The  second  point  to  observe  is  that  this  legitimate 
function  of  judicial  adjustment  of  legislation  to  its 
surroundings  in  the  legal  system  is  liable  to  abuse  and 
has  been  abused  in  American  law  in  the  immediate  past. 
The  old  law  and  the  new  element  ought  to  be  and  in  the 
end  must  be  made  to  accord  in  a  legal  system.  But  this 
does  not  mean  that  the  new  element  is  to  be  judged  with 
suspicion,  to  be  held  down  rigidly  to  the  mere  letter  of 
its  provisions,  and  to  be  distorted  by  the  reading  into  it 
of  all  the  dogmas  of  the  old  law  not  inconsistent  with  its 
express  terms.  Unhappily  a  tendency  of  this  sort  was 
manifest  at  one  time  and  has  not  wholly  disappeared. 
Many  things  combined  to  produce  such  a  tendency  in 
nineteenth  century  American  law;  the  poor  quality  of 
much  of  our  state  legislation,  the  analytical  theory  that 
law  is  made  and  its  American  form  that  law  is  what 
the  courts  decide  it  to  be,  the  relations  of  judge  and 
legislator  in  a  system  in  which  the  judiciary  in  finding 
the  law  may  test  the  validity  of  statutes  by  constitu- 
tional provisions,  the  traditions  of  a  legal  system  which 
preserved  many  memories  of  the  Germanic  conception 


AMERICAN  JURISTIC  THOUGHT         217 

of  a  body  of  rules  beyond  reach  of  human  change,  and 
above  all  a  notion  of  the  finality  of  common-law  doctrines 
derived  in  part  from  the  Germanic  tradition  and  in  part 
from  the  later  conception  of  natural  law,  and  fortified  by 
the  doctrine  of  the  historical  school  as  to  the  futility 
of  conscious  lawmaking.  Most  of  the  friction  between 
courts  and  people  has  been  due  to  this  notion  of  the 
finality  of  the  law  on  the  one  hand  and  the  notion  of  the 
finality  of  legislative  power  on  the  other  hand. 

Let  us  look  at  this  feature  of  the  relation  of  courts  to 
legislation  more  closely. 

Settled  habits  of  juristic  thought  are  characteristic  of 
American  legal  science.  Our  legal  scholarship  is  chiefly 
historical.  Our  professional  thinking  upon  juristic  sub- 
jects is  almost  wholly  from  the  point  of  view  of  eighteenth 
century  natural  law.  In  either  event,  it  begins  and  ends 
substantially  in  Anglo-American  case-law.  Understand 
me,  I  do  not  for  a  moment  underrate  this  inheritance  of 
judicial  experience  in  the  adjustment  of  individual 
relations  and  disposition  of  concrete  disputes.  But  I 
deny  that  it  contains  anything  beyond  such  experience 
in  any  other  sense  than  all  experience  may  be  made  to 
disclose  principles  of  action.  Yet  our  jurists  of  both 
schools  have  claimed  much  more  for  it.  It  has  been  shown 
more  than  once  that  our  historical  school  has  given  us  a 
natural  law  upon  historical  premises.  It  has  made  the 
fundamental  conceptions  of  our  traditional  case-law  into 
fundamental  conceptions  of  all  legal  science.  Thus  it 
has  set  up  a  fixed,  arbitrary,  external  standard  by  which 
all  new  situations  and  new  doctrines  are  to  be  tested. 
This  school  has  had  an  almost  uncontested  supremacy 
in  our  legal  scholarship.  In  the  profession  at  large  and 
in  the  law  schools  dominated  by  the  practitioner,  sub- 
stantially the  same  result  in  juristic  thinking  is  reached 
in  another  way.  Except  as  they  have  come  from  the 


218  POUND:  COURTS  AND  LEGISLATION  [CH.VII 

i 

halls  of  a  few  of  our  great  law  schools,  lawyers  and  judges 
have  been  trained  to  accept  the  eighteenth  century 
theory  of  natural  law.  Until  a  date  comparatively  re- 
cent, all  legal  education,  whether  in  school  or  office 
began  with  the  study  of  Blackstone.  Probably  all  serious 
office  study  begins  with  Blackstone,  or  some  American 
imitator  to-day.  Our  latest  and  most  pretentious  insti- 
tutional book  lays  down  the  natural  law  conception 
without  a  hint  that  any  other  might  be  tenable.  Some 
law  schools  still  make  Blackstone  the  first  subject  of 
instruction.  In  others,  Blackstone  is  a  subject  of  exam- 
ination for  admission  or  of  prescribed  reading  after 
admission,  or  there  are  courses  in  so-called  elementary 
law,  in  which  texts  reproducing  the  juristic  theories  of  the 
eighteenth  century  are  the  basis  of  instruction.  Thus 
scholar  and  lawyer  have  concurred  in  what  became  for 
a  time  a  thoroughgoing  conviction  of  the  American 
lawyer,  that  the  doctrines  of  the  common  law  are  part 
of  the  universal  jural  order.  When  he  spoke  of  law,  he 
thought  of  these  doctrines.  He  held  that  constitutions 
and  bills  of  rights  are  declaratory  of  them.  He  construed 
statutes  into  accord  with  them.  Through  the  power  of 
the  courts  over  unconstitutional  lawmaking,  he  forced 
them  upon  modern  social  legislation.  When,  to  use  the 
words  of  Bracton  and  of  Coke,  he  reminded  the  sovereign 
people  that  it  ruled  under  God  and  the  law,18  he  meant 
that  these  doctrines  which  were  conceived  of  as  going 
back  of  all  constitutions  and  beyond  the  reach  of  legist- 
lation,  were  to  be  the  measure  of  State  activity.  But  the 
fundamental  conceptions  of  Anglo-American  case-law  are 
by  no  means  those  of  popular  thought  to-day.  Being 
alien  in  many  particulars  to  current  notions  of  justice  and 
often  out  of  touch  with  the  economic  and  social  thinking 
of  the  time,  it  is  not  likely  that  these  principles  would  be 
18  "Prohibitions  del  Roy,"  12  Rep.  63. 


TWO  ABSOLUTE  THEORIES  219 

acquiesced  in  wholly  even  if  there  were  no  positive  force 
to  counteract  them.  Such  a  force  there  is.  For  the 
popular  theory  of  sovereignty,  what  one  may  call  the 
classical  American  political  theory,  is  quite  as  firmly 
rooted  in  the  mind  of  the  people  as  the  eighteenth  century 
theory  of  law  is  rooted  in  the  mind  of  the  lawyer.  The 
layman  is  taught  this  political  theory  in  school,  he  reads 
it  in  the  newspapers,  he  listens  to  it  on  the  Fourth  of  July 
and  from  the  stump  and  from  Chautauqua  platforms,  and 
he  seldom  or  never  hears  it  questioned.  In  consequence, 
he  is  as  thoroughly  sure  of  it  as  is  the  lawyer  of  his  juristic 
theory.  If  the  lawyer  is  moved  to  stigmatize  all  that  does 
not  comport  with  his  doctrine  as  lawlessness,  the  people 
at  large  are  moved  to  stigmatize  all  that  does  not  comport 
with  their  theory  as  usurpation. 

While  the  lawyer  believes  that  the  principles  of  law 
are  absolute,  eternal,  and  of  universal  validity,  and  that 
law  is  found,  not  made,  the  people  believe  no  less  firmly 
that  it  may  be  made  and  that  they  have  the  power  to 
make  it.  While  to  the  lawyer  the  State  enforces  law 
because  it  is  law,  to  the  people  law  is  law  because  the 
State,  reflecting  their  desires,  has  so  willed.  While  to 
the  lawyer  law  is  above  and  beyond  all  will,  to  the  people 
it  is  but  a  formulation  of  the  general  will.  Hence  it  often 
happens  that  when  the  lawyer  thinks  he  is  enforcing  the 
law,  the  people  think  he  is  overturning  the  law.  While 
the  lawyer  thinks  of  popular  action  as  subject  to  legal 
limitations  running  back  of  all  constitutions  and  merely 
reasserted,  not  created,  thereby,  the  people  think  of 
themselves  as  the  authors  of  all  constitutions  and  limi- 
tations and  the  final  judges  of  their  meaning  and  effect. 
This  conflict  between  the  lawyer's  theory  and  the  politi- 
cian's theory  weakens  the  force  of  law.  The  lawyer's 
theory  often  leads  him  to  pay  scant  attention  to  legisla- 
tion or  to  mold  it  and  warp  it  to  the  exigencies  of  what  he 


220  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

regards  as  the  real  law.  But  to  those  who  do  not  share 
his  theory,  this  appears  as  a  high-handed  overriding 
of  law,  and  the  layman,  laboring  under  that  impression, 
is  unable  to  perceive  why  the  lawyer  should  have  a 
monopoly  of  that  convenient  power.  On  the  other  hand, 
the  people's  theory  that  law  is  simply  a  conscious  product 
of  the  human  will  tends  to  produce  arbitrary  and  ill- 
considered  legislation  impossible  of  satisfactory  applica- 
tion to  actual  controversies. 

Hence,  I  take  it,  absolute  theories,  derived  from  the 
eighteenth  century,  are  the  principal  source  of  friction  in 
the  relation  of  courts  to  legislation.  Already  the  causes 
of  this  friction  are  disappearing,  and  the  resultant  diffi- 
culties in  our  legal  system  are  going  with  them.  More 
careful  legislation,  proceeding  upon  better  lines  and 
based  upon  better  understanding  of  what  legislation 
may  achieve  and  should  attempt  on  the  one  hand  and  the 
disappearance  on  the  other  hand  of  the  notion  of  the 
finality  of  the  common  law  are  now  things,  if  not  of  the 
present,  certainly  of  the  immediate  future.  And  at  the 
same  time  the  judicial  attitude  toward  legislation  has 
changed  visibly.  Comparing  the  reports  of  the  decade 
from  1880  to  1890  with  the  reports  of  to-day,  this  change 
becomes  very  striking,  and  a  progressive  liberalization 
is  manifest  as  one  looks  over  the  decisions  from  1890  to 
1910.  On  the  whole  the  movement  is  going  forward 
more  rapidly  in  the  courts  than  in  the  legislatures,  though 
some  states  here  are  conspicuous  exceptions.  Not  a 
little  modern  social  legislation,  as  it  is  too  often  enacted, 
will  call  for  the  highest  powers  of  the  strongest  judges 
that  can  be  put  upon  the  bench,  if  we  are  to  make  it 
effective  as  part  of  a  legal  system. 

Turning  now  to  interpretation,  I  must  make  it  clear 
at  the  outset  that  I  refer  to  genuine  interpretation,  to  a 
genuine  ascertainment  of  the  meaning  of  the  legislative 


GENUINE  INTERPRETATION  221 

provision.  This  problem,  however,  is  so  closely  connected 
with  the  more  difficult  one  of  application  of  the  provision 
to  the  cause  in  hand  that  to  some  extent  we  may  look 
at  them  together.  In  the  past  the  whole  complex  of 
problems,  finding  a  rule  to  apply,  interpreting  the  rule 
when  found,  and  applying  it,  has  been  called  interpreta- 
tion. This  has  led  to  an  impression  that  all  interpreta- 
tion involves  the  legislative  and  personal  element  which 
belongs  only  to  the  finding  of  law.  Hence  the  present 
popular  demand  that  our  courts  go  to  the  extreme  in 
spurious  interpretation  of  constitutional  provisions 
while  at  the  same  time  complaint  is  made  that  statutes  are 
nullified  by  the  ordinary  process  of  finding  and  applying 
the  law.  We  cannot  keep  before  us  too  clearly  that 
finding  the  law  —  if  you  will,  judicial  lawmaking  —  is 
one  thing,  and  true  interpretation  quite  another.  In 
dealing  with  statutes,  since  from  the  nature  of  the  case 
all  causes  could  not  be  foreseen,  this  finding  the  law  or 
judicial  lawmaking  or  spurious  interpretation  is  neces- 
sary unless  we  would  have  the  court  decide  by  throwing 
dice  or  casting  lots.  But  in  constitutional  law,  where  the 
issue  is  simply  whether  the  legislative  act  must  yield 
to  the  supreme  law  of  the  land  embodied  in  a  constitu- 
tional provision,  the  question  can  only  be  one  of  genuine 
interpretation.  In  the  first  decision  upon  the  legal 
tender  act,  indeed,  and  in  other  cases  occasionally, 
implied  limitations  upon  legislative  power  have  been 
derived  by  analogy.  But  such  implied  limitations,  if 
they  exist,  must  be  implied  in  fact.  The  idea  of  a  pre- 
scriptive constitution,  of  principles  running  back  of  all 
governments  of  which  bills  of  rights  are  but  declaratory, 
is  only  another  phase  of  the  idea  of  natural  law,  and  in 
its  application  means  simply  the  finality  of  an  ideal 
development  of  the  fundamental  principles  of  the  com- 
mon law.  In  many  of  our  state  courts  this  idea  has  been 


222  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

the  bane  of  constitutional  decisions  upon  provisions  of 
the  bills  of  rights.  Indeed  it  has  some  warrant  in  the 
notions  of  those  by  whom  the  bills  of  rights  were  framed, 
and  if  these  were  statutory  provisions,  the  position  that 
they  might  be  extended  analogically  as  being  declaratory 
of  common-law  doctrines  might  be  well  taken.  For  our 
bills  of  rights  represent  the  eighteenth  century  desire  to 
lay  down  philosophical  and  political  and  legal  charts 
for  all  time,  proper  enough  in  men  who  believed  they 
had  achieved  finality  in  thought  in  each  connection. 
The  first  period  of  our  constitutional  law  was  under  the 
influence  of  these  ideas.  But  legislatures  at  that  time 
were  willing  to  be  guided  by  the  prescribed  charts  and 
would  have  conformed  thereto  had  there  been  no  such 
constitutional  provisions.  The  chief  complaint  during 
this  period  was  that  the  courts  extended  the  possibilities 
of  governmental  action  by  interpretation;  for  example, 
that  they  allowed  the  federal  Government  to  do  much 
which  it  was  denied  the  constitution  had  granted  thereto. 
Later,  a  period  of  vigorous  legislation  upon  social  sub- 
jects began  and  the  complaint  changed.  Now  it  is  urged 
that  the  interpretation  of  courts  is  too  narrow,  that 
legislatures,  state  and  national,  are  shorn  of  the  powers 
that  belong  to  them.  What  has  happened  is  this. 
Experience  has  shown,  as  judicial  experience  has  always 
shown,  the  unwisdom  of  hard  and  fast  enactment. 
The  eighteenth  century  political  and  legal  charts  have 
been  found  unsuitable.  We  have  found  that  after  all  a 
bill  of  rights  was  wisely  omitted  from  the  original  draft 
of  the  federal  constitution.  Such  provisions  were  not 
needed  in  their  own  day,  they  are  not  desired  in  our  day. 
It  is  true  they  have  been  aggravated  to  some  extent  by 
taking  them  to  be  declaratory  and  then  reasoning  from 
assumed  first  principles  instead  of  applying  the  provisions 
themselves.  But  that  practice  has  been  disappearing 


SPURIOUS  INTERPRETATION  223 

with  the  wane  of  the  idea  of  the  finality  of  the  common 
law,  and  the  current  reports  show  that  with  a  few  con- 
spicuous exceptions,  both  federal  and  state  tribunals  are 
definitely  rejecting  it.  Consequently  it  is  a  misfortune 
that  at  the  very  time  when  spurious  interpretation  is 
thus  losing  its  only  foothold  in  judicial  interpretation 
of  constitutions,  there  should  be  a  strong  public  demand 
for  elimination  or  mitigation  of  undoubted  restrictions 
by  a  process  of  spurious  interpretation. 

The  fiction  involved  in  calling  the  judicial  process  of 
finding  the  law  by  the  name  of  interpretation  leads  to 
just  such  mischiefs.  1 1  gives  rise  to  an  aversion  to  straight- 
forward change  of  any  important  legal  doctrine.  The 
cry  is  interpret  it.  But  such  interpretation  is  spurious. 
It  is  legislation.  And  to  interpret  an  obnoxious  rule 
out  of  existence  rather  than  to  meet  it  fairly  and  squarely 
by  legislation  is  a  fruitful  source  of  confusion.  Yet  the 
bar  are  trained  to  it  as  an  ancient  common-law  doctrine, 
and  it  has  a  great  hold  upon  the  public.  Hence  if  the 
law  does  not  work  well,  says  Bentham,  with  fine  sarcasm, 
"it  is  never  the  law  itself  that  is  in  the  wrong;  it  is 
always  some  wicked  interpreter  of  the  law  that  has 
corrupted  and  abused  it."i9  Thus  an  unnecessary  strain 
is  imposed  upon  our  judicial  system  and  courts  are  held 
for  what  should  be  the  work  of  the  legislature. 

With  respect  to  legislation  proper,  however,  there  is 
much  yet  to  be  done  in  the  development  of  a  better 
system  of  interpretation  and  application.  Vandereycken 
finds  three  stages  in  the  development  of  judicial  inter- 
pretation.20 (1)  The  literal  stage,  is  one  in  which  the 
exact  words  taken  literally  are  made  the  sole  measure. 
(2)  In  the  logical  stage  the  law  is  taken  to  be  constituted 
by  the  will  of  the  lawgiver  and  respect  for  this  will 

»  "Fragment  on  Government,"  xvii. 

»«  "L*  Interpretation  juridique,"  §§236ff. 


224  POUND:  COURTS  AND  LEGISLATION  [Cn.  VII 

takes  the  place  of  the  respect  for  the  formula  which 
governed  the  preceding  period.  Most  of  our  common- 
law  interpretation  belongs  to  this  stage.  We  conceive 
of  genuine  interpretation  as  an  attempt  by  logical 
methods  to  ascertain  the  will  of  the  author  of  the  law. 
(3)  In  the  positive  stage,  the  law  is  regarded  not  so  much 
as  something  proceeding  from  the  will  of  the  lawgiver 
as  something  proceeding  from  society  through  him;  as 
being  the  product  of  economic  and  social  forces  working 
through  him  and  finding  expression  in  his  words.  Hence 
the  text  and  the  context  is  no  longer  held  to  be  an  all- 
sufficient  guide.  Nor  are  the  circumstances  attending 
enactment  held  conclusive.  Above  all  things,  it  is  held, 
regard  must  be  had  to  the  exigencies  of  social  life,  to  the 
social  ends  to  be  served,  to  the  effect  of  the  different 
possible  interpretations  or  applications  upon  the  com- 
munity to  be  governed  thereby.  Kohler,  one  of  its 
pioneer  advocates,  has  applied  this  method  to  the  new 
German  Code,  and  his  exposition  deserves  to  be  quoted. 
He  says: 

"Thus  far  we  have  overlooked  most  unfortunately 
the  sociological  significance  of  lawmaking.  While  we 
had  come  to  the  conviction  that  it  was  not  the  individual 
who  made  history  but  the  totality  of  peoples,  in  law- 
making  we  recognized  as  the  efficient  agency  only  the 
person  of  the  lawmaker.  We  overlooked  completely 
that  the  lawmaker  is  the  man  of  his  time,  thoroughly 
saturated  with  the  thoughts  of  his  time,  thoroughly 
filled  with  the  culture  that  surrounds  him,  that  he  works 
with  the  views  and  conceptions  which  are  drawn  from 
his  sphere  of  culture,  that  he  speaks  with  words  that  have 
a  century  of  history  behind  them  and  whose  meanings 
were  fixed  by  the  sociological  process  of  a  thousand  years 
of  linguistic  development,  and  not  through  the  person- 
ality of  the  individual.  The  opinion  that  the  will  of  the 


SOCIOLOGICAL  INTERPRETATION       225 

lawmaker  is  controlling  in  construing  legislation  is  only 
an  instance  of  the  unhistorical  treatment  of  the  facts  of 
the  world's  history  and  should  disappear  entirely  from 
jurisprudence.  Hence  the  principle:  rules  of  law  are 
not  to  be  interpreted  according  to  the  thought  and  will  of 
the  lawmaker,  but  they  are  to  be  interpreted  sociologi- 
cally, they  are  to  be  interpreted  as  products  of  the  whole 
people,  whose  organ  the  lawmaker  has  become."21 

It  is  significant  that  the  "Juristentag"  in  Germany 
has  already  undertaken  legal-sociological  inquiries  with 
respect  to  the  social  effect  of  existing  laws  as  the  basis  of 
proposed  legislation,  and  that  at  least  one  German  pro- 
fessor of  law  has  for  some  time  maintained  a  seminar 
devoted  to  studies  of  this  type.22 

As  has  been  said,  our  classical  common -law  interpreta- 
tion is  of  the  second  type.  But  something  very  like 
sociological  interpretation  has  begun  in  this  country. 
The  briefs  submitted  by  Mr.  Brandeis  in  the  case  of 
Mutter  v.  Oregon  and  in  the  case  involving  the  Illinois 
statute  as  to  hours  of  labor  of  women  show  what  may  be 
achieved  in  this  direction.23  Recent  decisions  of  the 
courts  upon  the  constitutionality  of  workmen's  compen- 
sation laws  show  that  the  good  sense  of  our  courts  is 
leading  them  to  develop  some  such  method  for  them- 
selves.24 

With  respect  to  interpretation,  then,  I  take  it  our 
tasks  are  (1)  to  rid  ourselves  here  also  of  absolute  theories^ 

21  "Lehrbuch  des  burgerlichen  Rechts,"  i,  §  38. 

22  Kantorowicz,    "Rechtswissenschaft     und    Soziologie,"    9;    Ehrlich, 
"Die    Erforschung   des    lebenden    Rechts,"    Schmoller's    Jahrbuch    fur 
Gesetzgebung,  Gewaltung  und  Volkswirthschaft,  xxxv,  129. 

23  See  the  briefs  in  Mutter  v.  Oregon,  208  U.  S.  412;  Hawley  v.  Walker, 
232  U.S.  718;    Miller  v.  Wilson,  236  U.S.  373;    Bosley  v.  McLaughlin, 
236  U.S.  385;    Ritchie  v.  Wayman,  244  111.  509;  People  v.  Schweinler 
Press,  214  N.  Y.  395;  Stetller  v.  O'Hara,  69  Ore.  519. 

2* Opinion  of  Justices,  209  Mass.  607;  State  v.  Creamer,  85  Ohio  St. 
349;  State  v.  Clausen,  65  Wash.  156;  Borgnis  v.  Falk,  147  Wis.  327. 


226  POUND:  COURTS  AND  LEGISLATION  [Cn.VII 

and  in  particular  of  the  remains  of  the  dogma  of  finality 
of  the  common  law,  (2)  to  repeal  what  ought  to  be 
repealed  directly  and  straightforwardly  and  not  store  up 
mischief  for  the  future  by  demanding  indirect  repeal 
by  spurious  interpretation,  (3)  above  all  to  develop  a 
sociological  method  of  applying  rules  and  thence  if  need 
be  of  developing  new  ones  by  the  judicial  power  of  finding 
the  law. 

A  radically  different  view  is  finding  favor  with  many 
laymen  to-day  and  has  been  advocated  by  professors  of 
government  and  political  science.  One  of  the  latter 
has  suggested  recently  that  the  power  of  interpretation 
should  be  taken  from  the  courts  and  given  to  some  execu- 
tive body  in  supposed  closer  touch  with  the  popular 
will,  thus  confining  the  courts  to  the  task  of  applying 
the  prescribed  and  interpreted  rule.  Perhaps  enough 
has  been  said  to  show  that  interpretation  apart  from 
decision  is  impracticable,  that  it  is  futile  to  attempt  to 
separate  the  deciding  function  from  the  interpreting 
function.  But  if  the  mere  function  of  genuine  interpre- 
tation were  to  be  set  off  — •  and  of  course  spurious 
interpretation  is  lawmaking  and  on  theoretical  grounds  is 
no  more  proper  for  an  executive  commission  than  for  a 
court,  and  on  practical  grounds  is  obviously  better  exer- 
cised concretely  than  abstractly  — •  how  little  should  we 
accomplish!  Professor  Gray  has  put  the  matter  very  well 
thus:  "A  fundamental  misconception  prevails  and  per- 
vades all  the  books  as  to  the  dealing  of  the  courts  with 
statutes.  Interpretation  is  generally  spoken  of  as  if  its 
chief  function  was  to  discover  what  the  meaning  of  the 
legislature  really  was.  But  when  the  legislature  has  had 
a  real  intention,  one  way  or  another  on  a  point,  it  is  not 
once  in  a  hundred  times  that  any  doubt  arises  as  to  what 
its  intention  was.  If  that  were  all  that  the  judge  had 
to  do  with  the  statute,  interpretation  of  the  statutes, 


APPLICATION  OF  RULES  227 

instead  of  being  one  of  the  most  difficult  of  a  judge's 
duties,  would  be  extremely  easy.  The  fact  is  that  the 
difficulties  of  so-called  interpretation  arise  when  the 
legislature  has  had  no  meaning  at  all ;  when  the  question 
which  is  raised  on  the  statute  never  occurred  to  it;  when 
what  the  judges  have  to  do  is,  not  to  determine  what  the 
legislature  did  mean  on  a  point  which  was  present  to  its 
mind,  but  to  guess  what  it  would  have  intended  on  a 
point  not  present  to  its  mind  had  the  point  been 
present."25 

Moreover,  this  very  experiment  was  tried  in  the  code  of 
Frederick  the  Great  and  failed  utterly  as  was  to  be  ex- 
pected. For  why  should  we  hope  that  the  executive  com- 
mission would  possess  more  foresight  than  the  legislature? 
It  is  a  lesson  of  all  legal  history  that  the  most  we  may 
achieve  in  advance  is  to  lay  down  a  premise  or  a  guiding 
principle  and  that  the  details  of  application  must  be  the 
product  of  judicial  experiment  and  judicial  experience. 

In  a  much-quoted  case  of  the  fourteenth  century, 
counsel  reminded  the  Court  of  Common  Pleas  that  if  it 
did  not  follow  its  own  decisions  no  one  could  know  what 
was  the  law.  One  of  the  judges  interposed  the  suggestion 
that  it  was  the  will  of  the  justices.  "Nay,"  corrected 
the  chief  justice,  "law  is  reason."26  In  this  antithesis 
between  will  and  reason  we  have  the  root  of  the  matter. 
Mere  will,  as  such,  has  never  been  able  to  maintain 
itself  as  law.  The  complaint  of  our  sovereign  peoples  that 
their  will  is  disregarded  must  be  put  beside  the  querulous 
outburst  of  James  I,  "Have  I  not  reason  as  well  as  my 
judges?"27  the  attempt  of  Frederick  the  Great  to  put  all 
interpretation  of  law  in  the  hands  of  a  royal  commission, 
and  the  futile  attempt  of  Napoleon's  code  to  prevent  the 

23  "Nature  and  Sources  of  Law,"  §  370. 
2«  Langbridge's  case.  Y.B.  19  Ed.  Ill,  375. 
"  "Prohibitions  del  Roy,"  12  Rep.  63. 


228  POUND:  COURTS  AND  LEGISLATION  [CH.  VII 

growth  of  a  judge-made  law.  There  is  no  device  whereby 
the  sovereign,  whether  King  Rex  or  King  Demos,  may 
put  mere  will  into  laws  which  will  suffice  for  the  admin- 
istration of  justice. 

To  sum  up,  I  think  the  difficulties  involved  in  the 
relation  of  courts  to  legislation  grow  out  of  (1)  over-mi- 
nute lawmaking  which  imposes  too  many  hard  and  fast 
details  upon  the  courts,  (2)  crude  legislation,  which  leaves 
it  to  courts  to  work  out  what  the  legislature  purported 
to  do  but  did  not,  (3)  absolute  theories,  both  of  law  and 
of  lawmaking,  which  lead  both  courts  and  legislatures 
to  attempt  too  many  universal  rules,  to  attempt  to  stereo- 
type the  ideas  of  the  time  as  law  for  all  time,  and  have 
led  courts  at  times  to  enforce  too  strongly  the  doctrines 
of  the  traditional  system,  at  the  expense  of  newer  prin- 
ciples, and  finally  (4),  by  no  means  least,  insufficient 
attention  to  the  problem  of  enforcement  of  rules  after 
they  are  made.  Enforcement  and  application  are  the 
life  of  law.  But  we  have  spent  our  whole  energies 
upon  making  rules  and  have  seemed  to  rely  on  faith  that 
they  would  vindicate  themselves.  More  than  anything 
else,  attention  to  procedure  and  to  the  enforcement  of 
rules  and  their  application  in  practice  will  relieve  the 
present  tension.  The  Puritan  ideal  of  judicial  machines 
bound  down  by  a  multitude  of  detailed  rules  has  proved 
inadequate.  If  legal  history  may  be  vouched,  the  way 
out  lies  in  strong  courts  with  full  powers  of  doing  justice, 
guided  by  principles  furnished  by  the  lawgiver,  but  not 
hampered  by  an  infinity  of  rules,  the  full  effect  whereof 
in  action  no  one  can  hope  to  foresee. 


§1]        GERLAND:  THE  ENGLISH  JUDGE        229 


CHAPTER  VIII 

THE  OPERATION  OF  THE  JUDICIAL  FUNCTION 
IN  ENGLISH   LAW 


BY  HEINRICH  B. 


§1.  RECENT  PROPOSALS  OF  LAW  REFORM  .—  §  2.  FREE 
LEGAL  DECISION.  —  §3.  ENGLISH  COURTS  AND  LEGAL 
DEVELOPMENT.—  §4.  POWER  OF  ADOPTING  RULES  OF 
PROCEDURE.—  §5.  THE  SYSTEM  OF  FOLLOWING  PRE- 
CEDENT.— §6.  PRACTICAL  EFFECT  OF  THE  SYSTEM: 
ADVANTAGES.—  §  7.  PRACTICAL  EFFECTS:  DRAWBACKS.— 
§S.  PRACTICAL  EFFECTS:  FURTHER  DRAWBACKS.—  §9. 
UNMANAGEABLE  STATE  OF  ENGLISH  LAW.—  §10.  PRO- 
POSED CODIFICATION.—  §11.  FREE  LEGAL  DECISION  NOT 
PRACTISED. 

§  1.  Recent  Proposals  of  Law  Reform.  An  attempt  to 
consider  the  various  modern  movements  for  legal  reform 
historically,  that  is,  not  so  much  by  analyzing  their 
ends  and  aims  as  the  causes  which  have  brought  them 
about,  would  seem  to  be  decidedly  interesting  from  sev- 
eral points  of  view.  Such  an  inquiry  even  may  have 
more  permanent  value  than  a  consideration  of  such  move- 
ments with  a  view  to  the  expediency  of  their  aims  and 
purposes.  For  one  thing,  we  should  arrive  at  a  less 

1  [Professor  in  the  University  of  Jena.  This  chapter  is  a  translation 
of  an  address  delivered  (in  substance)  before  the  Society  of  Juristic 
Medicine  at  Erlangen,  and  published  in  "Zivilprozessrechtliche  For- 
schungen"  edited  by  Dr.  Richard  Schmidt,  Heft  6,  Rothschild,  Berlin, 
1910.  The  translator  is  Ernest  Bruncken.} 


230      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

biased  conclusion,  we  should  learn  to  comprehend  and 
appreciate  the  historical  justification  of  each  movement 
for  reform.  Moreover,  we  should  become  acquainted 
with  objective  facts,  while  even  the  cleverest  reasoning 
always  retains  a  more  or  less  pronounced  subjective 
character.  Finally,  we  should  learn  to  know  the  connec- 
tions between  the  changing  life  of  the  law  and  the  great 
movements  in  the  civilization  of  each  period.  It  is  such 
connections  that  will  often  be  the  first  means  of  explain- 
ing the  ultimate  significance  of  a  legal  movement,  as 
well  as  its  ultimate  purpose.  Nor  need  I  emphasize 
the  further  truth  that  a  comprehensive  study  of  this  kind 
will  be  the  only  method  by  which  the  reforming  tendency 
itself  and  its  substantial  contents  may  be  estimated  at 
their  true  value,  or  at  least  appreciated  as  something  of 
importance. 

We  may  safely  assert  that  among  the  most  interesting 
movements  towards  law  reform  in  our  own  time  are  those 
which  are  directed  not  against  provisions  found  in  par- 
ticular enactments,  such  as  the  Penal  Code  or  the  Code 
of  Civil  Procedure,  but  rather  those  that  are  the  out- 
growth of  a  vague  and  generalizing  discontent  with  legal 
conditions  and  the  instruments  of  administration  of  the 
law,  the  courts.  We  cannot  help  taking  into  account  the 
existence  of  this  movement,  which  is  important  also 
from  a  political  point  of  view,  whatever  may  be  our 
opinion  regarding  its  justification. 

This  movement  criticizes  the  functioning  of  our  courts. 
"Strangers  to  actual  life"  is  one  of  the  most  polite  ex- 
pressions used  by  these  reformers  regarding  our  judges. 
Attacks  are  directed,  not  so  much  against  the  contents 
of  our  legal  system,  as  against  the  manner  in  which 
justice  is  administered.  It  is  easy  to  recognize  in  this 
movement  two  subordinate  tendencies.  One  set  of  critics 
starts  from  the  organization  of  our  courts  and  represents 


§1]  PROPOSALS  OF  LAW  REFORM  231 

it  as  defective.  The  large  number  of  judges  employed, 
it  is  said,  makes  it  impossible  to  have  the  law  adminis- 
tered exclusively  by  eminent  men  of  real  capacity. 
Disregarding  details,  we  may  say  that  their  battle-cry  is: 
Give  us  men!  Give  us  judges  of  genius,  such  as  we  need! 
They  demand  a  change  in  organization  to  the  extent 
only  to  which  a  realization  of  their  real  desire  requires  it. 
The  important  thing,  to  which  attention  is  called  again 
and  again,  is  this:  that  on  account  of  the  manner  in 
which  our  tribunals  are  organized  a  majority  of  our  judges 
are  unfit  really  to  perform  the  functions  which  their 
office  and  the  age  demand  of  them. 

Quite  different  from  this  tendency  (which  is  represented 
most  strenuously  by  Adickes2)  is  another  current  of 
thought.  Those  who  give  it  expression  also  lay  stress  on 
the  defects  in  the  legal  administration  of  to-day,  but  be- 
lieve that  the  fault  lies  altogether  in  the  attitude  which 
the  judges  have  assumed  toward  enacted  law.  They 
find  the  cause  of  the  trouble,  not  in  the  manner  in  which 
the  courts  are  organized,  but  in  the  lack  of  freedom  of  the 
judge  in  his  treatment  of  legal  rules  and  especially 
statutes.  The  judge,  they  say,  is  a  slave  of  the  statute, 
an  unprogressive  idolater  of  code  sections,  instead  of  the 
shaper  of  independent  legal  development.  Accordingly, 
the  adherents  of  this  party  do  not  propose  to  change  the 
principles  of  the  existing  organization  of  the  courts. 
They  do,  however,  propose  a  new  method  of  interpreta- 
tion. Ultimately,  they  are  in  favor  of  what  has  been 
called  "free  legal  decision,"  according  to  which  the  law 
as  it  stands  hereafter  is  to  be  merely  a  general  guide  for 
the  instruction  of  the  judge.  His  real  duty  is  to  find  the 
law  which,  as  has  been  said,  dwells  in  each  particular 

2  Adickes,  however,  has  attempted  to  defend  himself  against  the 
charge  of  demanding  merely  a  reform  in  the  constitution  of  the  courts, 
instead  of  insisting  rather  on  an  amendment  of  the  law  of  procedure. 
Comp.  "Aschaffenburg's  Monatsschrift,"  vol.  iv,  p.  13. 


232      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

state  of  facts.  He  is  to  fill  the  general  forms  of  the  statute 
with  the  sociological  considerations  growing  out  of  each 
separate,  concrete  case.3 

§  2.  Free  Legal  Decision.  I  have  already  said  that  an 
attempt  to  give  a  historical  survey  of  these  varying  tend- 
encies would  be  very  interesting.  Especially  with  re- 
gard to  the  last  of  them,  it  would  certainly  appear  that 
it  is  nothing  but  the  manifestation,  in  the  legal  field,  of 
a  movement  common  to  the  whole  province  of  civilization. 
The  struggle  of  these  new  doctrines  with  older  ones  is 
another  recurrence,  in  a  new  form,  of  processes  which 
have  always  agitated  humanity  and  will  ever  continue 
to  do  so.  For  in  the  last  analysis  it  is  a  contest  between 
individualism  and  objectivism  as  was  stated  by  Oert- 
mann.4  The  adherents  of  free  legal  decision  are  opposed 
to  the  absolute  dominion  of  the  letter  of  the  written  law, 
which,  according  to  them,  is  too  rigid  and  formal  to 
adapt  itself  to  the  ever-changing  needs  of  actual  life  — 
very  much  as  the  Law  of  Nature  School  in  its  day 
opposed  to  the  omnipotence  of  the  absolute  governments 
the  inalienable  rights  of  man.  It  is  true  that  they  are 
anxious,  unsuccessfully  enough,  to  conceal  the  arbitrary 
character  of  the  method  proposed  by  them  under  a  cover 
of  sociological  reasons.  Yet  it  is  obvious  that  all  this  is 
but  the  preaching  of  a  new  law  of  nature  which,  like 
the  old  one,  has  no  ultimate  foundation  but  subjective 
whim.  In  one  respect  alone,  the  new  law  of  nature  is 
sharply  distinguished  from  the  old  one:  it  is  of  purely 

»  As  a  matter  of  course,  I  do  not  fail  to  recognize  that  in  the  writings 
of  the  reformers  both  ideas  are  closely  interwoven.  I  do  not  mean  to 
say  that  we  have  before  us  two  externally  separated  movements  for 
reform.  My  object  is  rather  to  show  that  two  different  chains  of  ideas 
may  be  distinguished  in  the  movement.  The  distinct  nature  of  these 
ideas  is  not  changed  by  the  fact  that  in  specific  instances  they  are  ex- 
ternally connected. 

4  "Gesetzeszwang  und  Richterfreiheit,"  Erlangen  University  Pro- 
gramme, p.  3. 


§2]  FREE  LEGAL  DECISION  233 

juridical  character,  while  the  old  school  had  primarily 
a  political  point  of  view. 

It  is  hardly  necessary  to  state  that  in  making  these 
assertions,  I  have  in  mind  merely  those  representatives  of 
free  legal  decision  who  actually  demand  that  the  judge 
shall  be  independent  of  the  statute.  I  am  not  thinking 
at  all  of  those  who  are  in  favor  of  something  quite  differ- 
ent and  merely  propose  a  new  method  of  interpretation 
but  who  wish  to  retain  the  principle  that  the  judge  must 
be  bound  by  the  statute.  The  problem  now  occupying 
us  deals  with  this  proposition:  Is  it  practicable,  or  to  use 
a  much  used  modern  term  "right,"  5  to  accord  to  the 
judge  the  power  of  disregarding  a  statute,  the  meaning 
of  which  is  unambiguous,  if  he  believes  that  its  provisions 
are  not  in  accordance  with  the  just  requirements  of 
actual  life?  In  other  words,  is  our  law  to  be  merely  direc- 
tory, or  is  it  to  be  mandatory?  Another  question,  with 
which  we  do  not  deal  at  present,  might  be:  To  what 
extent  is  the  judge  to  be  bound  by  the  legislator?  To 
what  extent  should  the  judge  be  left  to  supplement  the 
statute?  In  that  connection  the  next  step  would  be  to 
inquire  how  the  judge  should  proceed  to  supplement  the 
statute.  That  problem,  I  believe,  has  been  discussed 
exhaustively  and  convincingly  by  Danz  in  his  "Aus- 
legung  der  Rechtsgeschafte."  6 

§  3.  English  Courts  and  Legal  Development.  It  would 
be  interesting  to  consider  in  detail  the  propositions 
briefly  sketched  above  and  especially  to  trace  the  par- 
allelism existing  between  legal  history  and  the  general 
development  of  civilization.  That,  however,  cannot  be 
the  subject  of  our  present  discourse.  Instead  of  it  we 
shall  approach  these  problems  from  a  different  angle. 

6  [The  allusion  is  to  the  term  "richtiges  Recht"  or  "law  conformable 
to  justice,"  brought  into  fashion  by  Stammler;  see  the  translation  of  his 
work  in  vol.  viii  of  this  Series. —  TRANSL.] 

« 2d  edition. 


234      GERLAND:  THE  ENGLISH  JUDGE  [CH.VIII 

Both  those  writers  who  believe  that  they  have  found 
the  true  cause  for  the  deterioration  of  our  courts  in  their 
faulty  organization,  and  those  who  are  represented  by  the 
school  of  free  decision  (I  may  mention  especially  Ehrlich) 
have  pointed  to  England  as  a  model  and  at  the  same  time 
as  proof  of  their  contentions.  There,  they  say,  all 
those  things  are  actually  to  be  found  in  practical  effect, 
which  at  home  we  can  merely  discuss  as  theoretical 
desiderata.  Now  it  seems  that  the  reality  of  English 
courts  and  their  organization  is  something  very  different 
from  what  German  reformers  imagine,  as  has  been 
amply  proven.7  Yet  it  may  be  desirable  also  to  bring 
together  some  historical  material  which  may  throw 
light  on  the  relation  of  the  courts  to  the  law,  and  espe- 
cially to  examine  in  some  detail  the  question  whether 
English  judges  are  really  in  the  habit  of  doing  those  things 
which  are  demanded  of  our  own  judges,  with  increasing 
vehemence.  Such  an  investigation  would  seem  to  be 
desirable  all  the  more  because  German  writers  (again  I 
mention  Ehrlich  8)  surprise  us  by  comparing  the  English 
judge  to  the  Roman  praetor,  while  at  the  same  time  this 
idea  is  most  strenuously  repudiated,  among  English 
writers,  by  men  of  the  greatest  scholarly  reputation,  as  for 
instance  Bryce. 

Accordingly,  I  desire  to  discuss  the  question  of  the 
relation  between  the  English  judges  on  the  one  hand,  and 
English  law,  together  with  its  development,  on  the 
other.  I  must  limit  my  subject,  however,  in  a  certain 
direction.  I  do  not  intend  to  enter  upon  a  discussion 
of  the  method  adopted  by  English  judges  for  the  inter- 
pretation of  formulated  law,  although  an  exhaustive  and 

7  Comp.  especially  my  paper  on  "Die  englische  Gerichtsverfassung 
n  ihrer  gegenwartigen  Entwicklung  und  die  deutsche  Gerichtsreform." 

•  "Freie  Rechtsfindung  und  Freie  Rechtswissenschaft,"  a  work  very 
interesting  in  itself,  and  expressing  clearly  many  of  the  ideas  afterwards 
discussed  by  Adickes. 


§3]  ENGLISH  COURTS  235 

strictly  systematic  treatise  of  this  sort  would  no  doubt 
help  us  to  realize  the  differences  and  similarities  of  legal 
interpretation  in  England  and  Germany  far  better  than 
a  mere  collection  of  cases  selected  for  that  purpose. 
For  the  individual  peculiarities  of  each  separate  case 
tend  to  hinder  an  insight  into  general  principles,  or  at 
least  make  their  comprehension  disproportionately  diffi- 
cult. As  I  have  said,  we  shall  not  discuss  herein  the 
interpretation  of  law  by  English  courts,  and  may  define 
our  subject  more  narrowly  as  an  attempt  to  answer 
the  question,  To  what  extent  do  English  courts  take  part 
in  the  further  development  of  their  own  law? 

In  this  regard  we  must  distinguish  two  things.  On  the 
one  hand  we  observe  that  the  courts  exercise  directly  legis- 
lative functions  to  no  inconsiderable  extent,  by  themselves 
making  the  rules  of  procedure  for  the  various  courts, 
or  at  least  by  taking  part  in  formulating  them.  On  the 
other  hand,  we  find  that  the  courts  play  an  indirect 
part  in  lawmaking  by  the  rule  that  the  effect  of  their 
decisions  is  not  limited  to  the  specific  case  decided,  but 
goes  beyond  that  and  becomes  a  new  rule  of  law.  By 
rendering  a  final  decision  in  a  case,  the  court  does  not 
only  act  judicially  but  also  legislatively,  by  creating,  as 
the  English  phrase  has  it,  a  precedent.  He  becomes  a 
creative  producer  of  law;  he  establishes  a  new  rule. 
We  need  hardly  emphasize  the  point  that  it  is  this  possi- 
bility which  has  the  greatest  interest  for  us.  It  is  this  func- 
tion of  the  English  courts  to  which  the  adherents  of  free 
decision  call  our  attention.  Thepart  played  by  the  English 
judges  in  making  the  rules  of  procedure  has  in  most 
cases  been  mentioned  only  incidentally  by  our  writers.9 

§  4.  Power  of  Adopting  Rules  of  Procedure.  Let  us 
first  speak  of  the  participation  of  the  English  judges  in 

9  A  more  detailed  treatment  only  in  Mendelssohn.  "Englisches  Rich- 
tertum  im  Court  of  Criminal  Appeal,"  pp.  41  seq. 


236      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

the  adoption  of  rules  of  procedure.  Here  we  should  note 
the  following:  from  a  purely  technical  point  of  view, 
no  distinction  is  made  in  England  between  statutes 
regulating  the  organization  of  the  courts  and  those  pro- 
viding rules  of  procedure.  The  same  statute  will  both 
establish  some  particular  court  and  regulate  its  mode  of 
procedure.  However,  the  statute  does  not  regulate  all 
the  details  of  procedure,  but  restricts  itself  to  some  more 
or  less  exhaustive  general  directions.  The  details  are 
provided  by  what  is  known  as  the  "rules,"  analogous  to 
what  with  us  are  known  as  "Ausfiihrungs-Bestimmungen" 
or  executory  provisions.  These  are  naturally  far  more 
voluminous  and  important  than  the  provisions  of  the 
statute.  The  ordinary  rules  of  the  High  Court  of  Justice 
and  the  Court  of  Appeal  number  no  less  than  1045  sec- 
tions, while  the  Judicature  Act  of  1873  has  altogether 
but  100  sections.  The  code  of  procedure  proper  is  there- 
fore to  be  found  in  the  "rules." 

Within  the  scope  authorized  by  the  statutes  these 
rules  have  all  the  force  of  a  statute.  Moreover,  the 
legal  force  of  the  rules  is  unlimited,  so  that  even  statu- 
tory provisions  may  be  modified  by  them  unless  that 
is  expressly  prohibited,  or  such  provisions  are  part  of  the 
very  statute  authorizing  the  adoption  of  the  rules.  The 
fact  that  rules  adopted  by  the  courts  may  be  valid 
even  in  derogation  of  statutes  is  shown  by  this,  that  some 
statutes  expressly  prohibit  the  amending  of  particular 
statutory  provisions  by  such  rules.  This  would  be 
meaningless  unless  it  meant  that  rules  can  amend 

statutes. 

********* 

The  participation  of  the  English  judges  in  the  develop- 
ment of  the  law  of  procedure  would  seem  to  be  entitled 
to  a  good  deal  of  attention.  The  question  might  well  be 
raised  whether  it  would  not  be  practicable  to  introduce  a 


§4]  RULES  OF  PROCEDURE  237 

similar  plan  in  Germany,  avoiding  some  of  the  objection- 
able features.  To  be  sure,  the  difficulties  would  be  in- 
creased by  our  federal  form  of  constitution.  This 
matter,  however,  can  be  merely  mentioned  and  not  be 
further  pursued  in  this  place.10 

§  5.  The  System  of  Following  Precedent.  We  now 
proceed  to  the  second  problem  with  which  we  are  to 
occupy  ourselves.  That  is  the  question  of  the  manner 
in  which  the  English  courts  are  able  to  influence  the 
legal  development  of  their  country  by  their  decisions. 
This  is  indeed  the  most  important  feature  of  their  law- 
making  functions.  As  stated  in  the  beginning,  the  rule  is 
that  the  decisions  of  certain  courts  are  binding  on  other 
courts.  Consequently  these  decisions,  within  certain 
limits,  do  not  merely  establish  rights  between  the  parties 
in  the  case  at  bar,  but  are  general  rules  having  enduring 
effects  beyond  the  particular  case.  Except  where  they 
simply  reaffirm  existing  rules,  they  do  actually  make  new 
law.  These  creative  decisions  taken  together  form  what  is 
known  as  case-law,  which  is  a  distinct  species  of  law  stand- 
ing between  statute  law  on  the  one  side  and  the  common 

law  (meaning  the  traditional  customary  law)  on  the  other. 
********* 

Now,  if  we  look  closer  into  the  question  of  how  a 
decision  may  be  at  the  same  time  an  act  of  legislation, 
we  shall  have  to  start  from  the  principle  that  existing 
law  cannot  be  changed  by  the  decision  of  a  court.  That 
is  true  equally  with  regard  to  statutory  and  to  customary 
law.  It  follows  that  decisions  merely  supplement  exist- 
ing law.  It  makes  new  law  by  filling  gaps,  but  where  law 
already  exists,  the  decision  can  be  declaratory  only,  never 
constitutive.  As  far  as  this  goes,  the  English  judges  are 

10  [Several  paragraphs  of  the  text  and  notes,  omitted  in  translation, 
contain  a  description  of  the  manner  in  which  the  rules  may  be  adopted, 
and  form  be  given  to  them.  —  TRANSL.] 


238      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

as  completely  bound  by  the  law  as  ours.  The  great  prin- 
ciple of  the  constitution  of  our  courts,  according  to  which 
the  independence  of  the  judge  is  limited  by  the  law,  is 
in  force  in  England  in  precisely  the  same  manner  as  with 
us.  However,  the  court,  in  declaring  what  the  law  is, 
must  determine  how  it  is  to  be  interpreted,  and  to  that 
extent  the  decision  is  binding.  Accordingly,  every 
decision  is,  within  limits  to  be  stated  presently,  an  au- 
thoritative interpretation,  and  being  such,  ceases  to  be 
merely  declaratory,  and  becomes  an  act  of  creative 
lawmaking.  Moreover,  in  interpreting  the  law,  the 
very  important  principle  is  recognized  that  the  courts 
will  not  apply  a  rule  to  such  an  extent  as  to  lead  to 
absurd  consequences.11  We  cannot  doubt  for  an  instant 
that  by  such  a  rule  the  judge  is  actually  raised  above 
the  law.  While  with  us  the  maxim  is  unconditionally 
adhered  to  that  "lex  falsa  lex  est,"  12  in  England  the 
principle  is  that  the  court  will  rectify  the  absurd  rule, 

and  the  maxim  would  read :   "lex  falsa  non  lex  est." 
********* 

In  order  to  determine  to  what  extent  a  decision  makes 
law,  we  must  ascertain  the  relation  of  the  various  courts 
to  each  other.  For  the  fundamental  rule  is  not  by  any 
means  that  every  decision  expressing  a  new  rule  has 
lawmaking  force  to  an  unlimited  extent.  It  is  only  the 
decisions  of  superior  courts  that  are  binding  on  the 

courts  inferior  to  them.13 

********* 

11  Comp.  the  detailed  treatment  of  this  matter  in  Hatschek,  "Englisches 
Staatsrecht,"  vol.  i,  pp.  138  seq. 

12  This  rule  is  the  law  in  spite  of  all  the  adherents  of  free  legal  decision 
may  say  against  it.    Their  arguments  refer  merely  to  what  they  desire 
the  law  should  be,  not  what  it  is.    From  the  most  fundamental  principle 
of  every  State  based  on  law  it  follows  that  every  activity  of  the  State 
must  be  founded  on  some  authority  given  by  law.    There  can  be  no  appeal 
from  the  law  itself. 

13  A  brief  synopsis  of  the  principles  regulating  this  matter  will  be 
found  in  Hatschek,  "Englisches  Staatsrecht,"  pp.  Ill  seq. 


§5]  STARE  DECISIS  239 

9 

From  this  rule,  that  none  but  a  superior  court  can  bind 
the  inferior  one  by  its  decisions,  the  further  important 
rule  is  derived  that,  as  a  matter  of  principle,  a  court  is 
not  bound  by  its  own  decisions  However,  while  this 
rule  is  true  of  the  most  important  of  English  courts, 
the  High  Court  of  Justice,  it  is  not  true  of  the  Court 
of  Appeal  and  the  House  of  Lords.  In  regard  to  these, 
the  rule  is  as  follows:  the  Court  of  Appeal  is  bound 
both  by  its  own  decisions  and  by  those  of  courts  now  abol- 
ished which  were  of  equal  rank  with  itself.  In  other 
words,  the  Court  of  Appeal  [sitting  in  bank]  is  unable  to 
overrule  itself  [unless  the  decision  was  arrived  at  by  the 
casting  vote  of  the  presiding  justice].  The  rule  is  still 
stricter  in  the  House  of  Lords,  which  cannot  overrule 
itself  at  all,  so  that  a  rule  once  established  by  it  can  be 
changed  only  by  statute. 

Amendment  of  case-law  by  statute  is  possible  without 
limitations,  of  course.  It  is  not  possible,  however, 
to  change  case-law  by  custom,  and  it  must  be  distinctly 
understood  that  a  rule  does  not  lose  any  part  of  its 
binding  power  by  mere  lapse  of  time,  no  matter  how 
long  ago  the  decision  was  rendered.  As  a  matter  of 
fact,  we  may  observe  that  decisions  a  hundred  and 
more  years  old  may  be  decisive  of  a  case  at  the  present 
day,  which  appears  a  very  strange  thing  indeed. 

§  6.  Practical  Effects  of  the  System:  Advantages. 
In  what  has  been  said  we  have  tried  briefly  to  elucidate 
the  principles  governing  the  doctrine  of  precedents. 
Now  we  must  inquire,  from  a  critical  and  historical 
point  of  view,  how  this  system  of  the  participation  of 
the  courts  in  lawmaking  has  worked  out  in  practice. 
I  believe  that  on  the  whole  we  shall  have  to  give  an  un- 
favorable answer:  the  system  as  such,  it  seems  to  me, 
will  have  to  be  called  a  failure.  A  number  of  reasons 
for  this  assertion  may  be  furnished;  but  before  we  do 


240      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

so  briefly,  let  us  call  attention  to  what  appear  to  be  the 
positive  advantages  of  the  system. 

First  of  all,  there  can  be  no  question  that  where  the 
courts  assist  in  law-formation,  the  authority,  or  rather 
the  external  importance,  of  the  judges  is  greatly  increased. 
If  a  decision  has  an  effect  beyond  the  concrete  case,  it  will 
be  of  interest  to  persons  not  parties  to  the  case,  and  the 
importance  attaching  in  strictness  to  those  decisions  only 
which  create  precedents  will  -be  ascribed,  in  the  long 
run,  to  all  decisions  of  those  whose  decisions  may  create 
precedents.  The  rulings  of  the  courts  will  have  greater 
weight  than  is  the  case  in  countries  where  their  func- 
tions are  of  a  merely  declaratory  nature.  It  is  easily 
understood  that,  in  the  course  of  time,  the  respect  due 
to  the  functions  of  the  judges  becomes  respect  for  their 
persons ;  although  it  must  be  stated  that  there  are  other 
considerations  contributing  to  the  high  outward  con- 
sideration in  which  English  judges  are  held. 

The  authority  of  the  judge  will  also  be  increased,  under 
the  conditions  set  forth  above,  by  the  additional  fact 
that  he  does  not  suffer  from  the  defects  of  the  law  in 
the  same  manner  as  a  judge  with  exclusively  declaratory 
functions.  With  us,  if  a  judge  with  strict  conscientious- 
ness applies  the  law  as  he  finds  it,  recognizing  gaps  as 
such  and  declining  to  supply  deficiencies  by  his  own 
arbitrary  will  (as  happened  for  instance  in  the  well- 
known  case  of  the  theft  of  electrical  current),  he  is 
apt  to  be  blamed  for  the  faults  of  the  legislator.  The 
supposition  that  our  judges  do  not  know  the  ways  of  the 
world  is  due  to  a  great  extent  to  the  conscientious  and 
correct  conception  they  have  of  the  duty  which  at  the 
present  day  is  imposed  upon  them.  In  England,  of 
course,  a  similar  reproach  is  not  possible.14  There,  gaps 
in  the  law  have  to  be  filled,  and  the  courts  cannot  decline 

"See  footnote  7  ante. 


§6]  STARE  DECISIS:  ADVANTAGES  241 

the  rendering  of  a  decision  on  the  ground  that  there  is 
no  statute  covering  the  case.  Their  activity  in  improving 
the  state  of  the  law  is  likely  to  make  prevalent  the 
notion  that  if  the  courts  can't  find  a  remedy  none  is  to 
be  found  simply  because  the  law  prevents  it.  Conse- 
quently the  tendency  is  to  put  the  blame  upon  the  law 
instead  of  the  judges,  and  this  tendency  is  favored  by 
the  habit  of  the  courts  of  criticizing,  often  without  mercy, 
a  state  of  the  law  which  they  disapprove. 

Finally,  it  may  perhaps  be  another  advantage  (al- 
though persons  of  a  very  scientific  turn  of  mind  may  in- 
cline to  call  it  a  disadvantage)  that  the  field  for  textual 
controversies  is  greatly  narrowed  by  the  lawmaking 
character  of  all  decisions,  even  the  interpretative  ones. 
Generally  speaking,  where  a  doubt  has  arisen  regarding 
the  interpretation  of  a  rule,  that  doubt  must  be  considered 
as  solved  as  soon  as  a  decision  has  been  rendered;  it 
rarely  happens  in  such  cases  that  a  textual  controversy 
continues  against  the  ruling  of  the  court.15  In  connec- 
tion with  this  we  may  mention  the  further  fact  that  the 
lawmaking  character  of  the  decisions  seems  to  tend 
towards  a  reduction  in  the  number  of  appeals  on  points 
of  law.  When  a  point  of  law  has  once  been  determined, 
nobody  is  likely  to  raise  it  again,  while  with  us  it  is  always 
possible  for  a  different  ruling  to  be  made,  so  that  the 
court  may  be,  and  actually  is,  asked  to  rule  on  the  same 
question  again  and  again.  What  is  true  regarding  appeals 
is  presumably  true  also  with  regard  to  new  suits;  thus 
there  would  seem  to  be  little  doubt  that  this  lawmaking 
character  of  decisions  tends  to  restrain  the  litigiousness 
of  the  public. 

§  7.  Practical  Effects:  Drawbacks.  Opposed,  how- 
ever, to  these  advantages  of  the  system,  which  we  may 

"It  will  be  different  where  writers  may  deny  that  the  decision  creates 
a  precedent,  by  calling  atttention  to  earlier  decisions. 


242      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

readily  admit,  there  are  grave  objections,  whereby  in 
practice  the  whole  system  impresses  one  as  extremely 
dangerous.  I  shall  note  the  following: 

First  of  all,  statutory  law  tends  to  become  secondary 
to  case-law.  There  is  no  occasion  for  the  legislature  to 
act  when  the  courts  can  supply  a  remedy.  Case-law 
easily  becomes  the  more  important  and  legislation  be- 
comes paralyzed  because  the  spur  of  necessity  is  lacking. 
If  notwithstanding  this  fact  considerable  portions  of  the 
law  of  England  have  actually  been  codified,  that  may  be 
explained  by  the  present  current  of  historical  develop- 
ment which  involves  a  gradual  abandonment  of  case-law 
and  likewise  of  customary  law.  This  is  a  phase  of  evolu- 
tion which  unfortunately  cannot  be  more  fully  discussed 
in  this  place. 

Further,  it  is  not  correct  to  say  that  the  flexibility  of 
English  law  is  secured  by  the  binding  force  of  decisions. 
On  the  contrary,  the  result  is  a  remarkable  rigidity  in  the 
growth  of  law;  the  process  of  growth  simply  cannot 
go  on  because  a  later  court  is  bound  by  what  an  earlier 
one  has  decided.  We  must  by  no  means  lose  sight  of  the 
rule  already  mentioned  that  lapse  of  time  cannot  deprive 
a  precedent  of  its  force.  The  backwardness  of  English 
law,  frequently  so  strongly  marked,  is  attributable  to  a 
great  extent  to  the  rule  of  "stare  decisis."  The  proposi- 
tion that  this  rule  actually  causes  stagnation  of  legal 
development  may  be  shown  historically  by  an  interesting 
example  which  is  frequently  not  understood  among  us: 
the  body  of  equitable  rules.  Originally,  there  was  in  Eng- 
land, aside  from  statutes,  no  law  but  customary  law  or 
what  is  known  as  the  Common  Law.  In  an  early  period 
the  Lord  Chancellor  began  to  grant,  in  cases  where  the 
Common  Law  afforded  no  remedy,  a  kind  of  protection 
based  on  fairness  and  justice,  which  was  at  first  a  matter 
of  discretion  but  later  was  conceded  as  a  matter  of  right. 


§7]  STARE  DECISIS:  DRAWBACKS  243 

In  this  way  arose  the  courts  of  equity,  and  from  their 
decisions  a  complete  system  known  as  equity  developed, 
which  was  distinct  from  and  not  infrequently  directly 
opposed  to  the  Common  Law.  Without  entering  on  the 
question  of  the  relations  of  Equity  and  the  Common  Law, 
which  is  now  purely  historical  anyhow,  we  may  content 
ourselves  writh  stating  that  Equity, which  in  its  beginnings 
was  pure  case-law,  had  by  the  beginning  or  middle  of 
the  nineteenth  century  become  so  ossified  and  rigid  that 
it  was  practically  impossible  any  longer  to  get  justice  in 
the  courts  on  merely  equitable  claims.16  Here  was  a  test 
of  the  practicability  of  the  system,  and  the  assertion  will 
scarcely  be  contradicted,  that  the  system  failed.  Inci- 
dentally I  may  remark  that  to-day  there  is  no  longer  a 
separate  body  of  equity  law,  and  what  is  more  import- 
ant, there  is  no  possibility  of  one  arising  again.  For  the 
great  reform  of  the  courts,  in  1873,  abolished  the  dis- 
tinction between  Common  Law  and  Equity,  a  fact  which 
obviously  we  cannot  treat  here  in  detail. 

After  this  historical  digression  let  us  return  to  our 
proper  subject.  A  danger  of  the  system  of  precedents  is 
also  apparent  in  this,  that  not  only  the  law  which 
judges  of  genius  have  found,  but  equally  the  products  of 
stupidity  and  misconceptions  (such  as  after  all,  lawyers, 
even  English  lawyers,  are  sometimes  capable  of)  lives 
forever  and  remains  a  binding  rule.  This  fault  has  been 
well  recognized  in  England,  and  we  often  find  in  the  books 
a  warning  that  a  poor  judge  can  do  more  harm  than 
many  an  able  one  can  do  good. 

§  8.  Practical  Effects  Continued:  Further  Drawbacks. 
Now  it  may  be  supposed  that  his  task  of  making  law  will 
inspire  the  judge  with  greater  courage,  strengthen 

16  Comp.,  i.a.,  the  account  given  byBirrell,  "Century  of  Law  Reform," 
pp.  177—202.  Birrell  concludes  with  these  words:  "Judge-made  law  has 
played  its  part.  To  statute  law  belongs  the  future.  Let  us  pray  for 
well-drawn  statutes." 


244      GERLAND:  THE  ENGLISH  JUDGE  [Cn.  VIII 

confidence  in  himself,  spur  him  on  to  greater  efforts. 
However,  the  fact  does  not  altogether  support  such  a  sup- 
position. Of  course,  I  do  not  mean  to  sit  in  moral  judg- 
ment on  the  members  of  English  courts;  I  wish  to  speak 
merely  of  the  possibilities  of  the  system.  Well-reasoned 
policy,  it  seems,  should  always  reckon  with  possibilities, 
never  with  probabilities.  Now  it  would  seem  pretty 
certain  that,  generally  speaking,  the  court,  and  particu- 
larly a  very  hard-worked  English  court,  will  be  inclined 
to  hunt  for  a  precedent  that  will  fairly  fit  the  case. 
Is  not  the  very  essence  of  the  system  of  following  prece- 
dent to  be  found  in  the  tendency  towards  relieving  the 
Court  from  the  necessity  of  using  his  own  judgment,  of 
the  act  of  creation,  as  Oertmann  has  appropriately  called 
it?  Do  we  not  even  now  complain  of  a  tendency  that 
turns  our  judges  into  unthinking  parrots  of  other  people's 
opinions?  Do  not  forget  that  in  England  there  is  not 
merely  a  te'ndency  to  follow  precedent,  but  that  adher- 
ence to  precedent  is  compulsory.17 

Furthermore,  even  where  precedent  does  not  form  an 
obstacle  to  development  but  carries  on  the  growth  of  the 
law,  there  are  still  great  drawbacks  to  the  system. 
Growth  under  such  conditions  will  ever  be  utterly  without 
regularity,  a  piecemeal  development  without  great,  com- 
prehensive ideas.  There  will  be  stop-gap  decisions,  tiding 
over  from  one  case  to  the  next,  and  serving  the  moment, 
but  yet  having  effects  on  all  future  time,  and  full  of  in- 
consistencies. There  can  be  no  such  thing  as  the  har- 
monious and  permanent  solution  of  great  problems.  The 
disconnected,  unmethodical  condition  of  English  law, 
with  its  numerous  inconsistencies,  that  are  attractive  to 
none  but  historians  and  romanticists,  is  caused  to  a  great 
extent  by  the  system  of  following  precedent. 

17  The  chase  of  the  precedent  is  well  described  in  Hatschek,  "Englisches 
Staatsrecht,"  vol.  i,  pp.  102  seq. 


§9]  CONFUSION  OF  ENGLISH  LAW  245 

§  9.  Unmanageable  State  of  English  Law.  This  leads 
us  to  another  and  undeniable  defect,  namely  the  unman- 
ageableness  of  English  law,  necessarily  caused  by  the 
use  of  precedents.  Who  can  possibly  digest  and  know 
the  enormous  collections  of  decisions?  Hundreds  of 
sets  of  reports  are  extant,  a  full  collection  of  them  fills  a 
large  library.  Thereby  legal  science  becomes  a  sort  of 
esoteric  doctrine,  comprehensible  to  none  but  lawyers. 
This  fact  explains  the  extraordinary  influence  of  the 
advocates  and  their  power  over  the  courts.  For  the 
judges,  also,  cannot  ever  hope  to  command  a  knowledge 
of  the  entire  body  of  precedents.  This  also  explains  the 
commanding  authority  exercised  by  certain  writers  who 
have  attempted  to  digest  this  "case-law."  The  Court 
cannot  possibly  know  the  law  —  it  must  be  provided 
for  him,  and  not  until  that  has  been  done  can  he  render  his 
decision.18 

In  the  last  analysis  it  is  also  owing  to  this  unmanage- 
able character  of  English  law  that  English  lawyers  of  the 
present  day  are  trained  so  unsystematically.  They  are 
wont  to  see  in  each  case  merely  that  case,  forming  a 
precedent;  they  do  not  learn  how  to  find  an  abstract 
principle  in  the  concrete  facts,  they  do  not  see  in  the 
particular  case  the  general  rule  manifesting  itself  in 
individual  form.  Yet  I  would  not  be  charged  with 
laying  too  much  stress  on  abstract  systems.  Systematic 
abstraction  is  the  logic  of  legal  science.  Nobody  can 
really  master  particular  details  who  has  not  first  compre- 
hended the  multifariousness  of  the  subject-matter  in 
the  singleness  of  all-embracing  ideas  and  concepts, 
in  other  words,  in  systematic  unity.  The  accidental  is 
with  difficulty  grasped  by  the  memory,  the  logically 

«  In  the  local  courts  of  England,  where  the  judge  ordinarily  is  a 
layman,  conditions  produce  an  extraordinary  and  preponderating  influ- 
ence of  the  subordinate  officers.  I  mention  this  point  but  incidentally 
because  it  is  typical  of  English  conditions. 


246      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

necessary  is  constantly  evolved  anew  by  the  intellect 
as  a  self-evident  consequence  of  the  principle.19 

This  lack  of  system  in  the  training  as  well  as  the  prac- 
tical work  of  the  lawyers  cannot  but  exert  in  turn  a  per- 
nicious influence  on  a  body  of  law  built  upon  precedents. 
How  can  a  judge  with  an  unsystematic  mind  create  a 
consistent  body  of  law?  Thanks  to  the  manner  of  his 
education,  he  will  hardly  ever  be  able  to  do  so.  While 
case-law  brings  about  lack  of  system  it  also  in  turn  is 
itself  rendered  unsystematic. 

§  10.  Proposed  Codification.  It  would  seem  as  if 
nobody  could  seriously  deny  that  the  conditions  here 
described  in  outline  must  have  considerable  and  unfavor- 
able effects  upon  the  administration  and  development  of 
the  law.  In  addition,  the  omnipotence  of  the  courts 
cannot  but  lead  to  subjectively  arbitrary  judgments. 
In  the  last  analysis,  it  is  the  Court  which  decides  whether 
a  decision  is  a  precedent  or  not,  and  whenever  he  comes 
to  render  a  new  decision,  his  individual  discretion  creates 
a  new  objective  rule.  As  a  matter  of  fact  the  condition 
of  the  case-law  is  like  an  incubus  on  the  people.  On  the 
one  hand  there  is  a  sort  of  ossification  of  the  actual  rules 
of  the  law,  which  the  courts  all  too  frequently  try  to 

19  To  be  sure,  there  exists  among  us  to-day  a  tendency,  and  unfor- 
tunately it  amounts  almost  to  a  fashion,  that  is  pleased  to  depreciate  the 
work  produced  in  our  legal  literature,  of  which  we  Germans  might  right- 
fully be  proud,  and  to  stigmatize  it  as  wholly  unimportant.  Writers  who 
are  given  altogether  too  much  honor  by  calling  them  prophetic  and 
excusing  their  extravagances,  dare  to  decry  works  like  Windscheid's 
"Pandekten"  or  Sohm's  "Institutionen"  as  being  compositions  without 
value.  These  writers  rave  about  English  judges  who,  according  to  them, 
are  trained  for  practical  life  by  studying  the  cases  and  therefore  qualified 
to  develop  the  law  further  by  their  own  fertile  powers  of  mind.  I  wish 
that  these  enthusiasts  had  to  study  German  law  from  the  chaos  of  cases 
swept  together  in  what,  among  Englishmen,  passes  for  systematic  works. 
Precisely  this  is  the  extraordinary  advantage  we  owe  to  our  systematic 
jurisprudence:  the  general  propositions  hidden  behind  the  occurrences 
of  practical  life  have  been  reduced  to  the  abstractions  of  the  law,  so  that 
we  are  relieved  from  the  necessity  of  abstracting  them  from  the  thousand- 
fold shapes  and  relations  of  social  life. 


§10]  CODIFICATION  247 

counteract  by  artificial  interpretation  of  the  facts.  On 
the  other  hand,  it  is  difficult  to  get  a  clear  idea  of  what 
the  law  really  is,  and  where  there  is  a  lack  of  precedents 
there  is  the  greatest  uncertainty.  Commercial  causes 
suffer  most  from  these  conditions.  The  increasing  tend- 
ency of  business  men  to  stay  out  of  the  courts  and  resort 
to  arbitration  is  caused  to  no  small  extent,  it  seems  to  me, 
by  the  system  of  following  precedents.  Business  re- 
quires clearness  of  legal  rules.  The  movement  in  favor 
of  codification  which  lately  has  become  more  and  more 
urgent  in  England,  comes  very  largely  from  commercial 
circles.  Whether  anything  will  come  of  this  within 
measurable  time  seems  to  me  more  than  doubtful.  For 
the  unsystematic  training  of  English  lawyers  renders 
codification  on  a  really  large  and  systematic  scale  exceed- 
ingly difficult  if  not  impossible.  How  can  mere  case 
lawyers  create  an  abstract  code?  And  even  if  a  legislator 
of  great  genius  should  arise  and  accomplish  so  enormous 
a  task  by  consolidating  the  common  law  and  the  myriads 
of  decisions,  is  it  likely  that  the  case  lawyers  would  know 
how  to  make  use  of  the  code?  The  ultimate  reason  for  the 
opposition  to  codification,  which  is  so  commonly  found 
among  English  lawyers,  has  its  principal  roots,  as  it 
seems  to  me,  in  the  last-named  circumstance.20  Nor 
should  one  overlook  this  consideration:  as  long  as  the 
system  of  precedents  remains  in  force,  even  the  best 
codification  would  be  useless.  For  around  the  code 
would  grow  a  new  tangle  of  precedents  and  cover  it  like 
the  wild  roses  that  covered  the  castle  of  the  sleeping 

*«  The  connection  of  these  two  circumstances  has  been  clearly  recog- 
nized in  England  likewise.  Thus,  in  "Journal  of  the  Society  of  Compara- 
tive Legislation,"  n.  s.,  vol.  iii,  p.  142,  the  lack  of  a  comprehensive 
codification  is  ascribed  "to  the  defective  and  haphazard  system  of  Eng- 
lish legal  education,  under  which  the  student  is  usually  left  to  pick  up 
odd  fragments  of  knowledge  in  court  or  in  barrister's  chambers,  and  is 
rarely  encouraged  to  take  any  general  or  scientific  view  of  the  principles 
which  he  has  to  apply." 


248      GERLAND:  THE  ENGLISH  JUDGE  [CH.  VIII 

beauty  in  the  fairy  tale.  Behind  that  almost  impenetra- 
ble hedge  the  spirit  of  the  law  would  slumber  as  in  a 
magic  sleep,  and  it  would  be  doubtful  whether  any 
liberator  would  ever  bring  it  to  life  again. 

§  11.  Free  Legal  Decision  Not  Practised.  We  have 
now  observed  the  place  of  the  courts  in  the  development  of 
English  law.  We  have  described  and  criticized  especially 
the  manner  in  which,  by  rendering  their  decisions,  they 
at  the  same  time  create  new  law.  Leaving  on  one  side 
their  cooperation  in  regulating  procedure,  which,  as 
mentioned  above,  is  well  worthy  of  attention  in  itself, 
but  of  slight  interest  for  a  comprehension  of  the  struggles, 
problems,  and  development  of  our  time,  we  have  shown, 
as  it  seems  to  me,  in  contemplating  case-law,  two  im- 
portant points.  First,  we  are  now  able  to  determine 
whether  an  English  judge  occupies  a  place  analogous 
to  that  of  a  Roman  praetor,  or  whether  Bryce  is  not  right 
when  he  calls  attention  to  the  profound  difference  between 
the  functions  of  the  two  officers.21  Furthermore,  the 
ideal  of  the  school  of  free  legal  decision,  the  independent 
position  of  the  judge  in  relation  to  the  statute,  is  by  no 
means  realized  in  England  any  more  than  elsewhere. 
In  England  likewise,  the  court  is  bound  by  existing  rules; 
such  rules  have  not  simply  relative,  but  absolute  force. 
Still,  the  courts  do  exercise  restricted  lawmaking  func- 
tions; but  these  functions  are  accompanied  by  so  many 
dubious  and  not  at  all  dubious  circumstances  that  it 
seems  to  me  impossible  to  argue  that  this  system  should 
be  desired  for  our  own  country,  let  alone  to  demand  the 
absolute  independence  of  the  courts  from  the  fetters  of 
legal  rules,  which  would  in  practice  be  nothing  better 
than  absolute  judicial  arbitrariness.22 

21  "Journal  of  Society  of  Comparative  Legislation,"  n.  s.  vol.  iii, 
p.  468. 

«  Adherents  of  the  free  decision  doctrine  might  object  that  they  do 
not  ask  that  decisions  should  become  binding  rules.  However,  we  are 


§11]  ENGLISH  JUDGE  FETTERED  249 

Our  judiciary  will  have  to  rest  content.  We  shall  not 
endow  it  with  the  "imperium"  of  the  English  courts, 
apparently  splendid  as  it  is,  though  that  splendor  may 
often  be  external  only.  Do  we  thereby  deprive  our 
judiciary  of  all  opportunity  to  contribute  its  share  to 
the  development  of  our  law?  Hardly!  On  the  contrary, 
we  thereby  create  for  it  an  opportunity  for  intrinsic  and 
not  merely  nominal  cooperation.  For  legal  development 
proceeds  not  by  the  conclusive  formulation  of  a  rule  but 
by  the  working  out  of  principles  which  underlie  the  rule. 
The  fundamental  weakness  of  the  English  system  is  found 
precisely  in  this,  that  every  legal  proposition,  once  authori- 
tatively enunciated ,  becomes  a  legal  rule.  Consequently  it 
is  no  longer  capable  of  further  transformation,  of  further 
elaboration.  Whenever,  with  us,  a  new  proposition  is 
announced  in  some  decision,  it  is  possible  to  work  over  it 
theoretically  and  practically,  by  criticism  and  by  system- 
atic thought,  so  as  to  develop  it  further  and  elaborate 
it  more  fully.  Nothing  is  concluded,  there  are  unlimited 
possibilities  of  further  action.  By  setting  the  courts  free 
from  the  fetters  of  precedent,  we  furnish  them  the 
opportunity  of  taking  part  at  all  times  in  the  scientific 
work  of  development.  We  are  not  satisfied  with  the  way 

not  interested  just  now  in  dealing  with  the  ideas  of  the  school  of  free 
legal  decision,  but  simply  in  understanding  the  conditions  prevailing  in 
England  with  a  view  to  discovering  whether  we  can  find  in  them  an  idea 
that  can  be  made  fruitful  for  ourselves.  And  such  does  not  seem 
to  me  to  be  the  case.  If  the  German  judges  are  slaves  of  code  sections, 
the  English  courts  are  slaves  of  precedents.  If  we  are  to  find  vital  ideas 
in  foreign  countries,  it  seems  to  me  that  we  should  and  could  make  use 
first  of  all  of  the  Swiss  Civil  Code.  For  in  its  section  2  we  may  discover 
a  road  towards  new  goals  without  risk  of  falling  into  a  quagmire.  How- 
ever, we  had  better  bear  in  mind,  also,  what  Radbruch  says  on  page  69 
of  his  "Einfiihrung  in  die  Rechtswissenschaft" :  "With  us  also,  the  recog- 
nition of  judicial  lawmaking  would  of  necessity  lead  to  recognizing  as 
legitimate  that  idolatry  of  precedent  which  is  just  as  widely  indulged  in 
as  it  is  universally  condemned."  In  other  words,  Radbruch  correctly, 
as  it  seems  to  me,  calls  the  system  of  precedents  a  necessary  consequence 
of  every  form  of  free  decision,  and  by  no  means  an  accidental  feature 
peculiar  to  English  law. 


250      GERLAND:  THE  ENGLISH  JUDGE  [Cn.  VIII 

a  thing  looks  to  a  single  court.  We  find  new  horizons 
with  new  means  of  knowledge  through  the  free  play  of 
many  minds  all  of  which  we  utilize,  and  through  the 
struggle  of  opinions  which  eliminates  the  factor  of  sub- 
jective error.  Thus  they  have  always  contributed  their 
share,  the  great  judges  which  this  country  also  has  pro- 
duced, and  of  whom  we  have  every  reason  to  be  proud. 
The  development  of  our  law  is,  in  part,  their  work, 
although  it  is  only  their  deeds  that  survive  in  their 
decisions,  instead  of  their  names  also,  as  in  England.23 
Thus  I  would  wish  that  the  body  of  our  judicial  decisions 
may  continue  to  develop  and  flourish  in  scientific  free- 
dom, subject  to  naught  but  the  law.  Then  our  judges  will 
ever  fulfill  the  highest  desire  of  all  lawyers :  they  will  be 
men  who  carry  on  the  legal  (which  is  the  social)  develop- 
ment of  our  nation,  men  who  are  creators  and  not  mere 
teachers  or  slavish  repeaters  of  what  they  have  been 
taught,  pioneers  of  the  future  notwithstanding  their 
systematic  comprehension  of  the  past. 

«  In  England,  the  name  of  the  judge  is  frequently  cited,  rather  than 
the  decision,  because  his  name  lends  authority  to  the  views  expressed 
in  his  opinion. 


§1]  LAMBERT:  CODES  AND  CASES          251 


CHAPTER  IX 

CODIFIED  LAW  AND  CASE-LAW:    THEIR  PART 
IN  SHAPING  THE  POLICIES  OF  JUSTICE 

BY  EDOUARD  LAMBERT1 

§  1.  THEORY  THAT  LAW  IS  MADE  STATIONARY  BY  CODI- 
FICATION: ITS  EFFECT.—  §2.  EFFECT  OF  THE  JUDICIAL 
DECISION  THE  SAME  IN  THE  ANGLO-AMERICAN  SYSTEM.  — 
§3.  FALLACY  THAT  CUSTOMARY  LAW  IS  WITHOUT  CON- 
SCIOUS POLICY.  —  §  4.  ORIGIN  OF  THE  FALLACY.  —  §  5. 
CUSTOMARY  LAW  IN  THE  ANGLO-AMERICAN  SYSTEM.— 
§  6.  CUSTOM  AND  JUDICIAL  DECISIONS  IN  ANGLO-AMERI- 
CAN LAW.  —  §  7.  THE  TRUE  FUNCTION  OF  THE  JUDGE.  — 
§  8.  THE  ENGLISH  DOCTRINE  IS  A  FICTION.  —  §  9.  FALLACY 
OF  THE  ENGLISH  DOCTRINE.  —  §  10.  COURTS  AND  LEGIS- 
LATURE AS  ORGANS  OF  LEGAL  PRODUCTION.  —  §  11.  CON- 
CLUSION. 

i 

§1.  Theory  that  Law  is  Made  Stationary  by  Codifica- 
tion: Its  Effect.  Reaction  and  revolt  are  manifest 
against  the  sterile  and  discouraging  methods  of  the  1800s 
which  have  paralyzed  juristic  thought  in  France. 

The  development  of  these  disastrous  methods  dates 
from  the  codification  of  1804.  It  was,  in  a  way,  the  price 

1  [Professor  of  History  of  Law;  in  charge  of  the  course  of  Comparative 
Civil  Law  at  the  University  of  Lyons.  The  present  Chapter  has  been 
made  up  from  excerpts  chosen  by  the  Editors  from  "La  Fonction  du 
droit  civil  compare"  (Paris,  1903),  vol.  i,  pp.  16-18,  61,  63,  74,  88, 
93-95,  95-100,  110-112,  173-199,795-796,799-811,821-823,  903.  The 
translation  is  by  Layton  B.  Register,  lecturer  in  the  University  of  Pennsyl- 
vania Law  School.] 


252          LAMBERT:   CODES   AND    CASES    [Cn.IX 

that  had  to  be  paid  for  the  unquestionable  benefits  of 
codification.  No  sooner  had  the  Civil  Code  been  promul- 
gated, than  observation  of  the  incessant  action  of  juridi- 
cal evolution  was  laid  aside  for  the  easier  study  of  legis- 
lative texts.  Scientific  study  gave  way  to  mere  com- 
mentary. Interpretation  was  deluded  into  the  belief 
that  the  Civil  Code  and  the  few  laws  which  have  com- 
pleted it  and  modified  it,  would  serve  indefinitely  to 
answer  all  the  juridical  problems  which  the  practice 
of  affairs  gives  rise  to  each  day.  Expounders  of  the 
statutes  believed  that  from  their  provisions,  exclusively, 
by  processes  of  analogy  and  by  induction  and  deduction, 
they  must  control  the  development  in  detail,  even  of 
principles  whose  advent  the  legislator  could  not  have 
foreseen.  They  were  not  concerned  whether  such 
control  was  equitable  and  adequate  to  the  purposes  of 
the  principle,  or  such,  indeed,  as  would  assure  its  proper 
operation.  Despite  the  clear  and  repeated  lessons  of 
history,  they  would  not  admit  the  inability  of  the  legis- 
lator to  render  the  law  stationary;  they  denied  that 
codification  could  at  best  modify  the  conditions  of  future 
juridical  evolution,  and  that  it  cannot  halt  or  suspend 
its  course.  They  raised  to  the  level  of  a  dogma  the 
concept  of  the  rigidity  and  immobility  of  the  law  and 
of  its  capacity  to  anticipate  and  control  everything. 
They  considered  all  other  sources  of  law  as  dead,  and, 
in  spite  of  the  daily  contradictions  of  experience,  pro- 
claimed that  henceforward  the  adjustment  of  the  exist- 
ing system  of  law  to  the  transformations  in  social  and 
economic  environment  could  be  realized  only  when  and 
as  the  legislator  decreed.  Powerless  to  prevent  the 
inevitable,  spontaneous  and  extra-legislative  production 
of  law,  they  yet  bound  themselves  to  ignore  it.  They 
adopted  as  the  fundamental  basis  of  their  method  a 
premise  which  is  the  very  negation  of  one  of  the  most 


§1]  CODES   NOT   IMMOBILE  253 

universal  laws  of  social  evolution,  the  perpetual  mobility 
of  law. 

We  cannot  wonder  that,  setting  out  from  such  a  prin- 
ciple, the  method  introduced  just  after  the  Civil  Code 
was  adopted  did  not  produce  satisfactory  results.  Its 
principal  effect  has  been  to  create  a  chasm,  that  widens 
each  day,  between  the  theory  of  text-writers  and  the 
rules  created  by  judicial  decisions.  Theory  was  bound 
to  feel  the  effect  of  its  own  policy  of  obstructing  the 
natural  path  of  the  law,  and  of  refusing  to  allow  its 
principles  and  reasoning  to  be  made  elastic,  or  its  classi- 
fication of  juridical  elements  to  grow  and  multiply,  as 
the  increasing  complexity  of  social  and  economic  rela- 
tionships required.  By  declaring  the  law  to  be  station- 
ary, theory  condemned  it  to  part  company  gradually 
with  reality.  Its  place  had  to  be  taken  little  by  little 
in  practice  by  a  new  system  of  law  formed  slowly  through 
the  repetition  of  judicial  precedent,  and  adjusted  to 
the  actual  needs  of  society:  the  body  of  judicial  deci- 
sions. 

Meanwhile  the  gap  between  theory  and  practice  is 
now  rapidly  widening.  The  law  expounded  in  class- 
room and  textbook  differs  more  and  more  from  that 
applied  in  the  courts.  If  the  method  obtaining  to-day 
continues  to  exercise  its  influence,  we  shall  certainly 
witness  in  France  a  repetition  of  a  most  unfortunate 
phenomenon  which  similar  causes  have  made  observable 
in  different  countries  and  periods,  especially  at  Rome 
and  in  England.  The  same  obstinate  disregard  of  the 
fundamental  law  of  social  evolution,  the  same  belief 
in  the  absurd  doctrine  of  the  inflexibility  of  the  law, 
which  caused  the  Roman  law  to  split  up  into  civil  and 
praetorian  law,  and  English  custom  into  common  law 
and  equity,  must  end,  unless  our  Civil  Code  lawyers 
alter  their  ways  in  time,  in  a  similar  separation  of  the 


254          LAMBERT:   CODES   AND    CASES    [Cn.lX 

civil  law  into  two  systems,  differing  in  origin  and  spirit, 
and  providing  opposing  rules  for  most  of  our  legal  prob- 
lems. On  the  one  hand  we  shall  have  a  body  of  "taught 
law"  ("doctrine"),  a  system  fallen  into  disuse,  having 
a  merely  conventional  and  fictitious  existence;  and 
on  the  other  hand  the  rules  as  applied  in  the  courts,  the 
system  which  is  really  in  use.  The  principal  consequence 
of  the  method  which  took  root  in  France  immediately 
after  codification,  has  been  to  screen  more  and  more 
from  public  observation  the  true  operation  of  existing, 
living  institutions,  by  concealing  them  behind  the  masks 
of  dead  institutions  of  the  past.  This  method,  too, 
forced  French  juristic  writers  to  renounce  for  the  time 
their  traditional  sociological  functions. 

The  method  which  thus  paralyzed  legal  speculation 
in  France  during  the  1800s,  or  methods  akin,  developed 
spontaneously  in  other  countries  under  the  influence 
of  the  same  causes.  Writers  on  the  Austrian  Civil 
Code2  allowed  themselves  to  be  drawn  little  by  little, 
as  happened  in  France,  into  exaggerating  the  effects  of 
codification,  attributing  to  it  a  capacity  to  render  the  law 
stationary,  and  laying  aside  the  observation  of  the  changes 
in  the  life  of  the  law  to  interpret  the  Code  of  181 1.3 

In  Germany,  the  scientific  study  of  civil  law  enjoyed 
far  more  liberty  of  movement  before  1896  than  there- 
after. By  reason  of  the  absence  of  uniform  legislation, 

2  Obviously  I  include  in  this  category  only  civil  jurists  of  the  provinces 
of  the  Austrian  Empire  governed  by  the  "Allgemeines  Burgerliches 
Gesetzbuch"  of  1811. 

8  Upon  the  evolution  of  the  methods  of  study  of  civil  law  in  Austria, 
during  the  first  half  of  the  1800s,  cf.  the  article  by  J.  Unger,  "Ueber  den 
Entwickelungsgang  der  osterreichischen  civiljurisprudenz  seit  der 
Einfiihrung  des  allgemeinen  biirgerlichen  Gesetzbuches,"  republished 
in  his  "System  des  osterreichischen  allgemeinen  Privatrechts"  (4th  ed.), 
vol.  i,  pp.  635-638.  For  the  contemporary  movement,  especially 
from  the  point  of  view  of  German  law,  cf.  Julius  Ofner,  "Rechtstheoris- 
tische  Bemerkungen,"  in  Zeitschrift  fiir  das  privat-  und  offentliche 
Recht  (1899),  vol.  xxvi,  pp.  1-18. 


§1]  EFFECTS   OF   CODIFICATION  255 

it  found  a  ground  for  development  comparable  to  that 
offered  by  France  between  the  time  of  the  official  compi- 
lation of  the  customs  and  the  period  of  the  drafting  of  the 
Civil  Code,  though  perhaps  a  little  less  favorable.  .  .  . 
The  formation  of  a  body  of  national  law  in  Germany 
was  due  largely  to  the  instrumentality  of  the  doctrine  of 
a  "Deutsches  Privatrecht,"  or  German  common  law. 
This  exercised  a  force  tending  to  nationalize  the  law 
in  Germany,  similar  to  that  exerted  in  France  from  the 
beginning  of  the  1500s  by  the  theory  of  a  common 
customary  law,  or,  more  especially,  in  the  1600s  and 
1700s  by  the  numerous  legal  works  which  aimed  to  show 
the  points  of  resemblance  between  the  judge-made  rules 
of  the  provinces  of  customary  law  and  of  written  law, 
in  order  to  distill  out,  wherever  possible,  elements  of  a 
law  common  to  the  whole  of  France. 

The  continuing  influence  of  the  doctrine  of  a 
"Deutsches  Privatrecht,"  or  German  common  law, 
prepared  the  way  for,  and  made  possible,  the  codifica- 
tion of  1896,  which  not  only  realized  the  uniformity  of 
German  civil  legislation  (though  incompletely),  but 
also  marked  a  decisive  stage  in  the  movement  towards 
the  nationalization  of  her  law.  The  German  Civil  Code 
did  for  the  regions  of  the  "gemeines  Recht"  what  the 
local  and  autonomous  codifications  of  the  law  of  the 
constituent  States  had  accomplished  for  the  other  parts 
of  Germany;  it  destroyed  the  authority  of  the  Roman 
law  as  a  subsidiary  law,  that  is,  as  a  direct  and  formal 
source  of  law.  In  addition,  the  juridical  system  estab- 
lished by  the  new  Code  was  purged  of  several  maxims 
of  Roman  importation,  met  with  in  the  majority  of 
legal  systems  previously  in  force  in  Germany. 
It  is  definitely  accepted  in  Germany  that  the  "Pandek- 
tenrecht,"  or  modern  adaptation  of  the  law  of  the  "Pan- 
dects," regarded  either  as  a  branch  of  legal  literature 


256          LAMBERT:   CODES   AND    CASES    [Cn.IX 

or  of  teaching,  has  to-day  reached  the  end  of  its  career; 
codification  numbered  its  days.  The  codification  of 
1896  will  therefore  have  rendered  the  science  of  German 
civil  law  a  double  service:  it  will  have  hastened  the 
elimination  of  those  elements  of  a  prior  system  which, 
being  of  foreign  origin,  had  not  been  sufficiently  assimi- 
lated; and  it  will  within  a  short  time  have  caused  the 
disappearance  of  a  method  of  legal  education,  really  a 
Roman  law  education,  which  was  developing  to  an 
exaggerated  degree  those  natural  defects  of  the  juristic 
mind :  I  mean  a  love  of  logic  and  abstract  conceptions,  a 
scorn  of  the  accidental  realities  of  life,  and  an  indifference 
to  the  needs  of  social  and  economic  life. 

But  of  these  benefits  the  second  can  scarcely -be  felt 
until  some  day  in  the  future,  when  German  legal  science 
will  have  escaped  from  the  unfortunate  course  (though 
foreseen,  to  be  sure),4  to  which  codification  constrained 
it.  Codification  immediately  stimulated  in  Germany 
the  spread  of  that  narrow  and  sterile  method  which 
during  the  1800s  had  paralyzed  the  work  of  our  own 
"school  of  expounders  of  the  Civil  Code."  The  already 
abundant  literature  upon  the  German  Civil  Code 5 
presents  a  striking  similarity  to  those  first  products 
inspired  by  the  French  Civil  Code.  There  is  the  same 
marked  tendency  to  remain  within  the  letter  of  the  legal 
text,  to  isolate  the  present  juridical  system  from  its 
historical  antecedents,  to  cut  the  roots  which  attach 
it  to  the  social  environment  in  which  it  was  formed.  It 

*Zilelmann,  "Die  Gefahren  des  BGB  filr  die  Rechtswissenschaft" 
(Bonn,  1896),  and  the  critical  analyses  in  Meyer,  "Ueber  Codification, 
Rechtswissenschaft  und  Rechtsstudium  der  Zukunft,"  in  Zeitschrift 
fur  verg.  Rw.,  vol.  vii,  pp.  81-101. 

6  Cf.  the  enumeration  of  the  authors  inspired  by  the  new  Code  and 
those  prior  to  1898,  in  Maas,  "Bibliographic  des  biirgerlichen  Rechts" 
(Berlin,  1899),  and  supplement  of  1900,  containing  mention  of  works 
published  in  1899.  Also  Miihlbrecht,  "Bibliographic  des  BGB"  (Ber- 
lin, part  i,  1898;  part  ii,  1900). 


§1]  GERMAN    CIVIL   CODE  257 

is  already  very  evident  that  German  writers,  as  they  warm 
to  their  new  task  of  interpreting  and  applying  the 
Code  (too  often  theoretic  and  obscure),  will  abandon 
for  the  time  the  creative  labor  of  improving  the  law, 
and  will  pass  through  a  phase  of  sterility  similar  to  that 
which  affected  French  doctrine  under  the  leadership  of 
the  "school  of  expounders  of  the  Civil  Code." 

§  2.  Effect  of  the  Judicial  Precedent  the  Same  in  the 
Anglo-American  System.  This  method,  which  isolates 
law  from  the  social  environment  in  which  it  was  cradled, 
which  treats  it  as  something  inert  and  dead,  appeared 
in  most  European  countries  as  a  consequence  of  codi- 
fication. It  was  the  fruit  of  a  mistaken  hope  in  the 
absolute  stability  of  juridical  relations,  —  a  hope  that 
arose  with  the  New  Regime.  It  is  not,  however,  a  con- 
sequence peculiar  to  codification.  The  very  same 
phenomenon  has  appeared  yet  more  markedly,  and  over 
a  much  longer  period  than  in  France,  in  countries  living 
principally  under  a  system  of  customary  law,  particularly 
under  English  law  (and  also  under  the  systems  related 
to,  or  derived  from,  the  English  law). 

In  England,  this  was  due  to  the  belief  that  laws  — 
statutes  —  were  capable  of  controlling  the  future  for 
an  indefinite  time;  and  above  all  to  the  superstitious 
respect  for  the  decided  case.  The  role  which  on  the 
Continent  is  assigned  to  judge-made  law  —  that  is,  to 
judicial  usage  arising  out  of  the  repetition  of  precedent 
and  the  uniformity  of  decisions,  —  has  from  time  imme- 
morial been  assigned  by  English  jurists  to  the  single 
isolated  judicial  decision,  the  case.  They  have  attached 
to  the  decision  of  the  judge,  on  the  question  of  law 
submitted  to  him  by  the  parties,  an  authority  higher 
than  that  which  we  recognize  in  a  settled  line  of  deci- 
sions, —  comparable,  indeed,  to  that  won  by  the 
"responsa  prudentum"  at  Rome.  The  English  have 


258          LAMBERT:   CODES   AND    CASES    [CH.IX 

conferred  upon  the  judgment  of  a  court  (under  certain 
conditions  which  we  need  not  examine  now)  the  effect 
not  only  of  proving  the  custom,  but  of  establishing  it 
forever.  The  decision  of  the  English  judge  preserves 
its  value  indefinitely.  It  survives  the  circumstances 
which  justified  it,  and  the  needs  which  called  it  into 
existence.6  Consequently  the  most  recent  English 
writers  continue  to  expound  statutes  and  cite  as  author- 
ities cases  dating  several  centuries  back,  at  times  to  the 
obscure  Middle  Ages.  The  belief  that  the  law  is  station- 
ary has  led  English  jurists  to  continue  to  proclaim  the 
survival  of  the  authority  of  a  body  of  doctrine,  the 
common  law,  which  grew  up  during  feudal  society,  and 
was  adapted  therefore  to  the  peculiar  needs  of  a  society 
profoundly  different  from  our  present  civilization. 

The  consequence  was  that,  with  changes  in  social 
and  economic  environment,  a  marked  contrast  grew  up 
rapidly  between  official  law  and  actual  usage.  This 
conflict  made  it  necessary  for  the  member  of  the  Govern- 
ment presiding  over  the  administration  of  justice,  the 
Chancellor,  to  interfere  to  temper  the  hardships  of  the 
strict  common  law,  just  as  the  Roman  praetor  used  to 
do.  Later  the  necessity  of  officially  controlling  his 
interference  caused  the  development,  parallel  to  the 
ancient  courts  which  decided  cases  according  to  the 
common  law,  of  courts  of  equity  under  the  inspiration 
of  more  liberal  ideas.  From  the  1500s  to  the  1700s 

•  The  scope  of  the  authority  attributed  to  the  judge's  decision  has 
been  denned  with  remarkable  clearness  by  Blackstone,  in  his  "Com- 
mentaries on  the  Laws  of  England."  The  idea  which  he  there  so  clearly 
formulated  remains  to-day  the  most  faithful  expression  of  current 
opinion.  Stephen,  in  his  "New  Commentaries  on  the  Laws  of  England" 
(to  whose  10th  ed.  1886,  I  shall  have  constant  occasion  to  refer)  repro- 
duces (vol.  i,  pp.  53  seq.)  almost  literally  Blackstone's  arguments, 
(Introduction,  sec.  iii,  1),  being  content,  generally,  to  repeat  the  text, 
rewriting  simply  the  antiquated  passages.  The  function  of  precedent 
in  American  common  law  was  described  in  almost  the  same  terms  by 
James  Kent,  "Commentaries  on  American  Law"  (14th  ed.  by  John 
Gould,  Boston,  1896),  vol.  i,  part  iii,  Lecture  XXI,  pp.  473  seq. 


§2]  INFLUENCE  OF   EQUITY  259 

i 

these  courts  built  up  a  system  of  case-law  much  broader 
and  more  modern  than  the  common  law  upon  all  the 
matters  brought  to  them  for  adjudication.  It  was 
known  as  equity.  But  its  rejuvenescence  has  in  turn 
been  obstructed  by  the  same  superstitious  reverence  for 
the  decided  case.  For  this  reason  many  of  its  charac- 
teristic principles  are  already  singularly  antiquated. 
Thus  occurred  that  division  of  English  law  into  two 
branches,  so  profoundly  different  in  spirit  and  in  origin, 
common  law  and  equity.  The  schism  represents  a 
fictitious  continuance  of  antiquated  and  of  modern 
institutions,  a  confusion  between  the  true  field  of  the 
legal  historian  and  that  of  the  expounder  of  living  law. 
We  may  scarcely  find  its  duplicate  unless  we  go  back  to 
the  Roman  law,  which  by  its  blind  infatuation  for 
tradition  presents  a  close  parity  with  English  custom; 
or  to  those  juridical  systems,  such  as  the  Mohammedan 
or  the  Judaic  law,  which  developed  through  the  expound- 
ing of  sacred  texts  whose  religious  origin  prevented 
anything  but  an  indirect  and  concealed  evolution. 

The  reverence  for  a  judicial  decision,  the  coexistence 
of  the  common  law  and  equity,  the  insufficiency  of  the 
rules  of  equity  themselves  to  satisfy  all  the  needs  of  life, 
are  among  the  principal  causes  making  English  case- 
law  an  inpenetrable  enigma  to  the  layman,  which  even 
the  initiated  solves  with  difficulty.  These  causes  have 
largely  contributed  to  making  an  actual  knowledge 
of  the  operation  and  spirit  of  English  civil  institutions 
very  difficult  to  Continental  jurists.  Contemporary 
textbooks  on  English  law  are  an  unsatisfactory  guide. 
With  rare  exceptions  they  contain  merely  analyses  of 
statutes  and  cases,  differing  little  from  the  French 
digests,  unless  it  be  in  their  lack  of  concern  for  the 
reasons  behind  the  decisions  cited  or  for  the  relation 
of  these  to  one  another. 


260  LAMBERT:    CODES   AND    CASES    [Cn.IX 

§  3.  Fallacy  that  Customary  Law  is  without  Conscious 
Policy.  What  is  the  cause  of  these  similar  results  thus 
outlined?  The  common  cause  is  found  in  two  deep- 
rooted  but  fallacious  beliefs. 

The  beliefs,  first,  that  the  productive  power  of  custom 
is  extinguished  through  codification;  second,  that  there 
is  no  conscious  element  or  deliberate  act  of  the  will  in 
the  creation  of  customary  or  extra-legislative  law  — 
these  two  fallacies  have  led  up  necessarily  to  the  con- 
clusion that  legislation  alone  (as  contrasted  with  the 
settled  doctrines  of  the  courts  and  of  legal  writers) 
contains  an  element  of  policy,  and  that  the  results,  there- 
fore, of  the  study  of  "legislative  policy"  can  be  utilized 
only  by  the  lawmaker.  The  very  term  "legislative 
policy"  translates  the  widespread  conviction  that  its 
applications  are  limited  to  the  field  of  legislation. 

But  these  two  premises,  which  are  the  basis  of  that 
conclusion,  are  both  fallacious.  I  have  already  expressed 
my  views  upon  the  first  of  them,  that  is,  the  immobility 
of  law  merely  as  a  result  of  codification,  and  have  noted 
a  few  of  the  more  striking  refutations  which  the  theory 
has  received  at  the  hands  of  actual  facts.  I  therefore 
merely  refer  the  reader  to  these  prior  explanations. 

But  I  have  not  yet  critically  examined  the  second 
of  these  premises,  viz.,  the  absolute  spontaneity  which 
is  claimed  to  characterize  customary  law,  as  contrasted 
with  legislation,  —  that  is,  unwritten  law  as  opposed 
to  written  law.  The  terms  "spontaneous"  or  "natural" 
movement  of  law  designate  conveniently  the  extra- 
legislative  or  customary  production  of  juridical  rules, 
but  do  not  connote  the  distinctions  and  reservations 
which  attach  to  the  idea  contained  in  these  expressions. 
We  must  now  critically  examine  the  validity  of  this 
current  notion  concerning  the  nature  of  the  extra- 
legislative  sources  of  law.  For  the  field  of  application 


§3]  CUSTOM    NOT  SPONTANEOUS  261 

of  "legal  policy"  will  be  extraordinarily  broadened,  if  it 
comes  to  be  generally  recognized  that  to  predicate  com- 
plete unconsciousness  in  extra-legislative  production 
is  a  mere  assumption  without  foundation  in  reason.  It 
is  due  to  a  spread  through  European  thought  of  a  wholly 
artificial  conception  of  custom,  —  a  notion  foreign  to 
countries  which  live  under  a  system  of  customary  law, 
or  where  the  conception  has  gained  but  slight  foothold 
through  foreign  importations  that  have  never  been 
assimilated.  This  notion  has  thrived  in  surroundings 
subject  to  the  domination  of  statutory  law  and  deeply 
hostile  to  custom. 

§  4.  Origin  of  the  Fallacy.  The  essential  elements 
of  this  artificial  notion  regarding  customary  law  came 
from  two  sources.  In  part  they  were  furnished  by  the 
canon  law.7  The  Church's  system,  at  the  moment  when 
its  principal  lines  of  development  had  ceased,  was 
dominated  by  a  desire  to  establish  firmly  the  principle 
of  authority  and  to  assure  uniformity  of  constitution 
and  discipline  within  the  Church.  Canon  law  was 
little  apt  to  look  with  favor  upon  custom,  which  is  the 
natural  stronghold  of  particularism ;  and  yet  it  tolerated 
custom  as  an  inevitable  phenomenon,  merely  endeavoring 
to  limit  its  production  as  much  as  possible.8  In  part 
also  this  artificial  notion  was  derived  from  the  compila- 
tions of  Justinian,  which  were  written  during  a  period 

7  The  compilations  forming  the  Corpus  Juris  Canonici  contain  refer- 
ences of  considerable  length  to  the  general  theory  of  the  source  of  law 
and   the  function  of  custom.     The  provisions  relating  to  custom  are 
gathered   together  in   Gratian's   Decree,   Distinctions    1    to   15,    part   i 
(especially  8,  11,  12);    in  the  other  parts  of  the  Corpus  Juris  we  find 
them  more  or  less  scattered  (though  a  few  parts  contain  Titles:    "De 
consuetudine").     Cf.  the  enumeration  and  analysis  of  these  provisions 
in  Brie,  "Die  Lehre  vom  Gewohnheitsrecht,"  vol.  i,  pp.  59-95,  §§  9-12. 

8  Upon  the  spirit  of  the  canon  law,  cf.  Gierke,  "Deutsches  Privat- 
recht,"  vol.  i,    §20,  ii,  p.   160;    and  "Genossenschaftsrecht,"    vol.    iii, 
p.  307,  note  185;    Puchta,  "Gewohnheitsrecht,"  i,  p.  184;  Brie,  loc.  cit., 
p.  63. 


262  LAMBERT:   CODES   AND    CASES    [Cn.IX 

of  blind  faith  in  the  omnipotence  of  legislation.9  These 
two  elements  were  combined  and  fused  by  the  post- 
glossators,10  canonists,  and  civilians,  who  for  centuries 
worked  to  realize  the  substitution  of  the  Roman  law, 
more  or  less  modified  through  interpretation,  for  local 
usage  and  the  rules  originating  through  custom.  In  the 
spread  of  the  Roman  and  ecclesiastical  conception  of 
custom,  which  tended  to  reduce  this  source  of  law  to 
very  feeble  productivity,  they  saw,  and  rightly,  one  of 
the  most  effective  means  of  realizing  their  aim. 

The  Roman  and  canonical  origins  of  this  conception 
of  custom  would  justify  (were  it  possible  to  regard  it 
as  correct),  the  contrast  frequently  emphasized  between 
legislative  law  as  the  product  of  the  will  and  of  reflec- 
tion, and  custom  as  the  work  of  mere  juridical  instinct. 
This  conflict  represents  custom  as  due  exclusively  to  the 
spontaneous  and  unreasoned  effort  of  individuals,  com- 
bined with  the  inevitable  action  of  the  laws  of  imita- 
tion.11 According  to  this  doctrine,  we  may  speak  (with 
Geny)  of  the  "unconscious  and  blind  force  of  custom." 
And  we  would  have  to  recognize  that  the  branch  of 
legal  science  whose  function  we  desire  to  define  (that 
is,  "legal  policy")  could  play  no  part  in  directing  these 

•  This  faith  is  especially  evident  in  the  famous  Constitutions  pro- 
hibiting any  private  commentary  and  reserving  to  the  Emperor  the 
function  of  interpreting  the  doubts  to  which  his  legislation  might  give 
rise:  Cod.  I,  17,  1,  2,  "C.  de  veteri  jure  enucleando  .  .  .  etc."  Cf. 
Geny,  "Methode  d 'interpretation  et  sources  en  droit  prive  positif"  (1900), 
p.  73. 

10  Brie,  loc.  cit.,  pp.  95—128,  contains  an  interesting   analysis  of  the 
theories  of  the  glossators  on  this  matter;  of  the  post-glossators,  pp.  128- 
164;  and  of  the  canonists,  pp.  165-202. 

11  Upon  the  function  of  imitation  (which  tends  somewhat  to  limit 
the  character  of  the  spontaneity  of  custom)  as  understood  by  students 
of  the  Pandects,  cf.  Tarde,  "Les  Transformations  du  droit"  (1893),  p.  204, 
"Les  Lois  de  1'imitation"   (2d  ed.   1895),  pp.  267  seq.;    and  from  the 
exclusively  philosophical  point  of  view,  cf.  Geny,  "Methode  d'interpre- 
tation  et  sources  en  droit  prive  positif,"  p.  299;  Brie,  "Puissance  unifi- 
catrice  du  droit  contumier,"  contributed  to  the  Congress  of  Comparative 
Law,  1900. 


§4]      CANON    LAW  THEORY   OF   CUSTOM      263 

natural  and  unconscious  movements  from  which  custom 
springs;  and  that  it  is  powerless,  therefore,  to  produce 
any  effect  outside  of  legislation.12 

§  5.  Customary  Law  in  the  Anglo-American  System. 
But  is  this  Roman  and  canonical  conception  of  custom 
acceptable?  Ancient  as  is  the  tradition  which  estab- 
lished it,  we  need  not  hesitate  to  reject  it.  There  is  a 
very  decisive  reason  for  rejecting  the  Roman  and  canon- 
ical conception  of  custom,  viz.,  the  impossibility  of 
reconciling  it  with  the  actual  operation  of  custom,  as 
observed  in  the  principal  systems  of  customary  law  in 
the  several  great  countries  where  it  persists,  and  in 
those  systems  which  we  may  study  through  the  data 
furnished  by  the  history  of  western  civilizations. 

Especially  enlightening  in  this  respect  is  the  English 
system  of  law  (and  also  that  of  the  great  majority  of  the 
United  States  of  America)  where,  alongside  statutory 
law  (that  is,  legislation  in  the  strict  sense),  which  is 
growing  in  volume,  custom  still  forms  the  general 
foundation  of  the  law.13 

English  customary  law  is  divisible  into  two  branches 
of  very  unequal  productivity:  first,  general  custom, 
whose  authority  extends  over  the  whole  realm,  and 
which  is  termed  the  common  law,  understood  in  its 
broad  sense,  that  is,  as  including  equity  rather  than 
as  distinct  from  it;  second,  special  or  local  custom, 
which  applies  only  to  the  inhabitants  of  a  more  or  less 


,  it  is  true,  escapes  this  last  consequence;  and  none  more  than 
he  has  contributed  to  win  acceptance  of  the  expression  "legal  policy" 
in  France.  This  is  because  his  particular  theory  of  the  relations  of 
positive  law  and  natural  law  ("nature  des  choses  positives")  made  it 
possible  for  him  to  restore  to  "legal  policy"  a  large  circle  of  influence 
outside  of  legislation,  in  the  field  reserved  by  him  to  natural  law. 

»»  England  and  the  United  States  are  universally  cited  as  the  typical 
example  of  great  nations  living  principally  under  a  system  of  customary 
law;  cf.  especially,  Geny,  "Methode  d'interpretation  et  sources  en  droit 
prive  positif,"  p.  282. 


264          LAMBERT:   CODES   AND    CASES    [Cn.IX 

restricted  region  of  English  soil,14  and  for  which  the  term 
"custom"  without  qualification  is  generally  employed. 

It  is  only  the  second  branch  of  English  customary  law, 
or  special  or  local  custom,  that  has  felt  at  all  deeply  the 
impress  of  the  Roman  and  canonical  doctrine.  Here 
are  discovered  not  only  its  distinguishing  features 
(relegated,  it  is  true,  to  secondary  consideration  in  the 
English  commentaries,  but  not  absent) ,  that  is :  observ- 
ance by  those  affected,15  presumption  of  a  universal 
implied  consent,16  sanction  of  the  sovereign17;  but  also 
a  series  of  rules  (given  prominence  in  the  usual  English 
law  treatises),  which  read  sometimes  like  mere  repro- 
ductions, at  other  times  like  a  development  or  even 
exaggeration  of  the  measures  adopted  by  the  glossators 
to  restrain  the  domination  of  custom.  Thus  it  is  declared 
that  a  custom  must  be:  (1)  immemorial;  (2)  continued; 
(3)  peaceable;  (4)  reasonable.  Local  custom  is,  therefore, 
rigidly  governed  by  rules  which  reflect,  not  without 
enlargement,  the  principal  features  of  the  Roman  and 
canonical  conception. 

On  the  other  hand,  and  for  the  same  reason,  the 
reaction  of  the  canonical  doctrine  has  been  almost 
negligible,  or  at  most  has  worked  but  superficially  upon 
that  branch  of  English  custom  which  stands  alone  to-day 
as  alive  and  productive,  i.e.  judicial  precedents.  General 
custom,  which  Blackstone  very  justly  called  the  "first 
ground  and  chief  cornerstone  of  the  laws  of  England," 
is  divided  into  two  great  branches:  common  law, 

14  In  the  definition  of  special  custom   I   except  commercial  law  — 
customs  of  merchants  —  which  is  usually  classed  as  such,  but  which 
shares  in  the  authority  attaching  to  the  common  law.      Stephen,  "New 
Commentaries  on  the  Laws  of  England"  (1886),  i,  p.  62. 

15  English  authors  generally  do  not  insist  upon  this  first  feature; 
they  merely  allude  to  it  in  enumerating  the  conditions  necessary  for  the 
legality  of  the  custom. 

18  Stephen's  Blackstone,  Introd.  sec.  3,  ii,  3;  Blackstone  (ed.  Chom- 
pre),  i,  p.  121. 

"  Blackstone  (ed.  Chompre),  i,  p.  116. 


§5]     TWO   KINDS  OF   ENGLISH   CUSTOM     265 

properly  speaking,  and  equity.  Neither  of  these  two 
classes  of  English  customs  is  susceptible  of  being  bent 
to  the  narrow  conception  which  we  owe  to  the  imagina- 
tion of  the  glossators  arid  canonists. 

§  6.  Custom  and  Judicial  Decisions  in  Anglo-American 
Law.  The  common  law  itself  is  in  reality  a  product  of 
judicial  activity.  To  be  convinced  of  this,  we  need 
only  to  read  carefully  Blackstone's  pages  on  the  common 
law,  which  have  remained  classic  and  have  been  repro- 
duced in  substance  in  the  most  recent  editions  of 
Stephen's  Commentaries.  Yet,  as  a  writer,  Blackstone 
was  highly  respectful  of  tradition  and  little  disposed 
to  draw  the  veil  from  the  artifices  by  which  jurists  had 
long  deceived  the  public  as  to  the  true  process  of  the 
formation  of  English  law.  .  .  .  After  declaring 
incidentally  that  the  authority  of  the  rules  of  the  com- 
mon law  rests  upon  general  reception  and  usage,  Black- 
stone  is  content  to  examine  a  single  question,  yet  one 
of  such  importance  that  all  others  become  negligible, 
namely,  the  question  of  proof.  When  this  has  been 
determined,  it  is  possible  to  consider  the  theory  of  the 
common  law  as  completely  established.  Blackstone's 
solution  of  the  question  of  proof  robs  of  all  verity  in 
practice  the  theory  of  the  origin  of  custom,  borrowed 
by  him  from  the  Roman  law. 

"How  are  these  customs  or  maxims  to  be  known,  and 
by  whom  is  their  validity  to  be  determined?  The 
answer  is,  by  the  judges  in  the  several  courts  of  justice. 
They  are  the  depositaries  of  the  laws ;  the  living  oracles, 
who  must  decide  in  all  cases  of  doubt  and  who  are  bound 
by  an  oath  to  decide  according  to  the  law  of  the  land."18 
We  have  already  noticed  19  the  singular  authority  which, 
due  to  the  reverence  for  judicial  decision,  attaches  in 

18  Introduction,  sec.  3,  i. 

19  Ibid.,  sec.  3,  i,  p.  59. 


266          LAMBERT:   CODES  AND    CASES    [CH.IX 

England  to  the  precedents  of  the  courts.  "They  are 
the  principal  and  most  authoritative  evidence  that 
can  be  given,  of  the  existence  of  such  a  custom  as  shall 
form  a  part  of  the  common  law."20  Even  this  early 
statement  is  incomplete  and  inexact,  and  is  frequently 
corrected  in  the  pages  that  follow.  Judicial  decisions 
not  only  form  the  principal  proof,  but  the  sole  means 
of  proof  of  custom.21  Thus  Blackstone  comes  to  define 
the  common  law  as  "general  immemorial  custom,  .  .  . 
from  time  to  time  declared  in  decisions  of  the  courts 
of  justice."22 

Blackstone's  expression,  "living  oracles,"  immediately 
suggests  an  analogy  between  the  function  of  the  oracle  of 
antiquity,  in  religious  matters,  and  the  English  judge  in 
legal  matters.  The  latter  reveals  custom  as  the  former 
revealed  the  divine  will.  Neither  admittedly  creates 
or  originates;  each  merely  discovers  and  interprets. 
The  judge  to-day  declares  the  custom  as  the  oracle 
formerly  spoke  the  divine  will.  Just  as  (according  to 
pagan  belief)  the  intentions  of  a  god  were  apprehended 
before  being  affirmed  by  the  oracles,  so  English  cus- 
toms, according  to  the  traditional  notion  superstitiously 
preserved  by  modern  jurists,  exist  prior  to  the  judg- 
ments through  which  they  are  made  known.  From 
their  first  application  they  are  held  to  be  immemorial 
as  though  their  origin  was  lost  in  the  obscurity  of  time. 

There  are,  one  may  say,  in  the  history  of  a  customary 
rule,  two  clearly  distinguishable  phases:  one  prior,  the 
other  subsequent  to  its  judicial  declaration.  So  long 
as  the  declaration  of  the  custom  does  not  intervene,  the 
rule,  though  already  existing  in  theory,  is  unknown,  — 
we  might  say  even  unknowable,  not  only  to  the 

20 Blackstone,  "Commentaries,"  Introduction,  sec.  3,  i,  p.  69. 
21  Ibid.,  sec.  3,  i,  p.  71. 
«  Ibid.,  sec.  3,  i,  p.  73. 


§6]  COMMON    LAW   ORACULAR  267 

unprofessional  mind  but  even  to  the  jurist.  The  lawyer 
knows  that  the  rule  exists,  but  he  must  give  up  hope 
of  discovering  it  through  his  own  investigation.  English 
custom,  like  the  will  of  the  pagan  gods,  remains  hidden 
from  vulgar  eyes.  Only  the  elect  may  perceive  it,  — 
the  judges,  endowed,  like  the  oracle  of  old,  with  a  special 
power  of  receptivity.  But  when  the  judge  has  per- 
formed his  function,  when  he  has  pronounced  his  oracle 
and  has  recognized  in  such  and  such  a  rule  the  character 
of  custom,  behold  the  transformation!  What  before 
was  uncertain  and  indifferent,  is  now  a  permanent  rule.23 
No  one  asks  by  what  signs  the  judge  recognized  or 
divined  the  custom.  His  function  fits  him  to  penetrate 
its  mysteries;  on  entering  upon  his  duties  he  has  given 
his  oath  to  unveil  them;  from  that  time  his  judgment 
becomes  the  very  voice  of  custom.  When  a  question, 
already  settled  by  a  decision,  is  again  raised  before  a 
court,  it  is  enough  to  cite  the  prior  decision,  that  is,  to 
show  the  identity  between  the  former  case  and  the  case 
under  litigation,  for  the  custom  to  be  thereby  proved 
and  for  the  judge  to  be  bound  by  it.  Custom  does  not, 
therefore,  acquire  a  practical  value,  that  is,  become 
applicable,  until  it  is  declared  lor  the  first  time  by  the 
judge.  But  from  that  instant  it  becomes  law.  Hence- 
forth f  on  the  occasion  of  a  similar  hypothesis,  the  judge 
will  not  be  asked  to  declare  the  custom.  It  is  known. 
It  binds  him  as  well  as  the  parties  to  the  case.  He  is 
merely  asked  to  interpose  his  authority  to  make  it 
respected,  and  the  precedents  must  be  followed 
indefinitely. 

23 Blackstone,  vol.  i,  Introd.,  sec.  3,  i,  p.  69;  Stephen,  vol.  i,  p.  53, 
"When  in  any  case  the  law  has  been  solemnly  declared  and  det  r mined 
what  before  was  uncertain,  and  perhaps  indifferent,  is  now  become  a 
permanent  rule,  which  it  is  not  in  the  breast  of  any  subsequent  judge 
to  alter  or  vary  from,  according  to  his  private  sentiments."  Cf.  Pollock, 
"Essays  in  Jurisprudence  and  Ethics,"  pp.  246-252. 


268          LAMBERT:   CODES  AND   CASES    [Cn.lX 

We  have  seen,  it  is  true,  that  Blackstone  moderated 
this  principle  where  the  precedent  is  contrary  to  divine 
law,  or  is  manifestly  unjust  or  absurd.  The  exception 
in  which  Blackstone  formulated  this  exception  deserves 
quotation;  it  throws  a  final  light  upon  the  conception 
which  English  jurists  hold  of  the  relation  between  cus- 
tom and  judicial  decision:  "Yet  this  rule  admits  of 
exception,  where  the  former  determination  is  most 
evidently  contrary  to  reason;  and  much  more  if  it  be 
contrary  to  the  divine  law.  But  even  in  such  case 
the  subsequent  judges  do  not  pretend  to  make  a  new 
law,  but  to  vindicate  the  old  one  from  misrepresentation. 
For  if  it  be  found  that  the  former  decision  is  manifestly 
absurd  or  unjust  it  is  declared,  not  that  such  a  sentence 
was  bad  law,  but  that  it  was  not  law;  that  is,  that  it  is 
not  the  established  custom  of  the  realm,  as  has  been 
erroneously  determined."24  .  .  .  "So  that  the  law, 
and  the  opinion  of  the  judge,  are  not  always  convertible 
terms,  or  one  and  the  same  thing;  since  it  sometimes 
may  happen  that  the  judge  may  mistake  the  law."25 

§  7.  The  True  Function  of  the  Judge.  Plainly  we  must 
ascribe  this  modified  English  doctrine  to  one  of  those 
rare  traces  of  reaction  from  the  canon  law  doctrine. 
Mention  of  divine  law  is  proof  enough.  We  rediscover 

here,  between  the  lines,  the  classic  theory  that  irra- 

I 

*4  Blackstone,  vol.  i,  Introd.,  sec.  3,  i,  pp.  69-70;  Stephen,  vol.  i,  p.  54. 

&  Blackstone,  vol.  i,  Introd.,  sec.  3,  i,  p.  71;  this  passage  is  not  re- 
produced by  Stephen.  In  his  chapter  upon  the  science  of  case-law,  Sir 
F.  Pollock  ("Essays  in  Jurisprudence  and  Ethics,"  chap,  ix),  does  not 
even  mention  this  theory  of  irrationality.  It  has  penetrated  but  very 
superficially  into  English  thought.  He  has,  indeed,  foreseen  the  pos- 
sibility of  mistakes  by  the  judge  and  the  influence  which  passion  may 
work  upon  him,  but  he  has  regarded  these  as  mere  accidents,  capable 
of  leading  the  observation  of  the  jurist  astray  in  his  effort  to  predict 
future  judicial  opinion.  But  the  English  doctrine  does  not  admit  that 
these  grounds  may  be  pleaded  to  shake  the  authority  of  cases.  We  might 
summarize  with  complete  accuracy  the  observations  of  Sir  F.  Pollock 
by  inverting  Blackstone's  maxim  and  declaring  that  the  opinion  of  the 
judge  and  custom  are  synonymous  terms. 


§7]      FUNCTION   OF   NATURAL   REASON      269 

tionality  invalidates  custom,  —  profoundly  transformed, 
however.  Blackstone's  interpretation  of  this  rule  (the 
very  validity  of  which  on  the  Continent  was  doubt- 
ful) ends  by  paralyzing  it.  If  Blackstone  lingered 
over  the  examination  of  so  theoretical  a  hypothesis, 
it  was  because  he  imagined  it  a  favorable  occasion 
to  dissipate  the  confusion,  which  arises  easily  in  every 
mind  not  trained  to  juridical  subtlety,  between  custom 
and  the  judgment  which  declares  it.  Stephen,  later, 
felt  the  necessity  of  strengthening  Blackstone's  attempted 
demonstration  by  a  few  observations  of  his  own.  Often, 
he  said,  questions  arise  concerning  which  the  rules  of 
the  common  law  have  not  been  fixed  by  judicial  deci- 
sions. The  judge  will  first  turn  to  a  process  of  analogy 
in  order  to  come  indirectly  to  a  solution  of  these  prob- 
lems by  means  of  cases  handed  down  upon  closely 
related  facts.  But  sometimes  even  analogy  will  not 
serve  to  guide  the  judge.  Then  there  falls  upon  him 
necessarily  the  duty  to  divine  and  reveal  custom.  His 
judgment  will  be  "according  to  the  natural  reason  of 
the  thing."26  This  part  of  the  common  law  of  England 
which,  being  undeclared  by  the  courts,  enjoys  as  yet 
a  merely  theoretical  existence  and  remains  unknown 
to  the  public,  presents,  therefore,  features  singularly 
resembling  what  M.  Geny  calls  "la  nature  des  choses 
positives."  Even  where  the  judge  is  in  reality  reduced 
to  the  promptings  of  his  own  reason,  the  principle  must 
be  maintained,  says  Stephen,  that  the  magistrate  does 
not  create  custom,  but  merely  reveals  it.  Consequently 


*•  Sir  F.  Pollock,  "Essays  in  Jurisprudence,"  pp.  251,  255,  prefers  to 
emphasize  another  force,  which  under  these  circumstances  influences 
the  judge.  He  speaks  of  an  "ideal  standard  of  scientific  fitness  and 
harmony,"  similar,  he  says,  to  the  "elegantia  juris"  of  the  Romans 
and  closely  akin  to  what  is  termed  in  France  "1'esprit  de  la  loi"  or  "1'esprit 
du  systeme  juridique."  In  the  absence  of  precedent  these  guide  the 
judge  and  exert  their  force  upon  him  by  reason  of  his  legal  training. 


270          LAMBERT:   CODES  AND    CASES    [CH.IX 

his  judgment  always  appears  to  declare  what  the  custom 
is  and  not  what  it  ought  to  be.27 

These  expositions  by  Blackstone  and  Stephen  furnish 
ample  justification  for  our  former  statement  that  the 
system  defended  by  Dahn  and  Stobbe,  and  before  them 
by  Puchta  and  Savigny,  denying  that  usage  ("Uebung") 
is  a  constituent  factor  in  customary  law,  and  reducing 
it  to  the  role  of  a  normal  mode  of  revelation  of  pre- 
existing custom,  contains  a  far  larger  share  of  truth 
than  the  contrary  opinion  at  present  dominant  among 
the  "Pandektenrecht"  school  of  writers.  This  system 
rests  upon  an  accurate  comprehension  of  the  ideas 
current  in  the  localities  where  custom  is  still  strong; 
especially  has  it  the  merit  of  being  in  very  close  accord 
with  the  conception,  held  by  English  jurists,  of  the 
common  law,  which  is  the  one  type  of  custom  remaining 
vital  and  active  in  England. 

§  8.  The  English  Doctrine  is  a  Fiction.  But  does  that 
conception,  which  is  almost  universally  accepted  in 
populations  exclusively  or  principally  subject  to  cus- 
tomary law,  and  especially  in  England,  conform  to  the 
reality?  Does  it  faithfully  describe  the  true  genesis, 
the  real  operation  of  custom?  Certainly  it  does  not. 
Sir  Henry  Maine  demonstrated  this  with  remarkable 
clearness  in  the  eloquent  pages  of  his  "Ancient  Law." 
He  was  not  led,  it  is  true,  to  deal  with  the  common  law 
except  incidentally,  in  the  course  of  his  examination 
of  legal  fictions  and  of  the  role  which  they  have  played 
in  the  juridical  evolution  of  many  societies.  He  points 
to  two  examples,  the  one  borrowed  from  Roman  law, 
the  other  from  English  law,  which,  he  says,  are  well 
calculated  to  illustrate  "the  efficiency  with  which  they 
perform  their  twofold  office  of  transforming  a  system 

"  Stephen,  i,  p.  55. 


§8]  FICTION   OF   COMMON   LAW  271 

of  laws  and  of  concealing  the  transformation."28  It 
is  the  second  of  these  examples,  that  of  English  law, 
in  which  we  are  interested.  The  traditional  conception 
of  the  nature  and  origin  of  the  English  common  law 
as  presented  in  the  commentaries  of  Blackstone  and 
Stephen,  appears,  under  the  light  of  Maine's  analysis 
and  criticism,  as  the  product  of  a  curious  combination 
of  reality  and  fiction. 

The  truth  is  that  for  many  centuries  the  customary 
law  of  England  has  developed  only  by  the  deliberate 
activity  of  judges,  and  that  its  changes  and  progress, 
so  slow  and  so  notoriously  inadequate,  are  the  exclusive 
work  of  judicial  legislation.  The  decisions  of  the  courts, 
which  have  been  recorded  in  innumerable  volumes  of 
"reports,"  occupy  in  the  English  customary  system  a 
place  comparable  to  that  of  legislative  enactments  in 
the  French  system  of  codification.  It  was  this  con- 
sideration which  urged  Maine,  in  another  part  of  his  book, 
to  protest  against  a  terminology,  certainly  incorrect, 
yet  definitely  accepted  in  the  juridical  language  of 
France,  which  admitted  of  the  expression  "unwritten 
law"  to  denote  "customary  law."  English  common 
law,  says  Maine,  is  certainly  a  customary  law,  but  it 
is  not  an  unwritten  law.  The  term  written  law,  if  we 
take  it  in  its  first  and  natural  meaning,  is  as  suitable 
to  English  customary  law  as  to  the  parliamentary  law 
of  the  continent.  It  is  written  like  the  latter,  only  in 
reports  of  decisions  and  not  in  codes.29 

The  English  and  the  French  judge  alike  must  fulfill 
a  twofold  mission,  and  in  accomplishing  them  each  has 
recourse  to  methods  which  are,  it  is  true,  far  from  iden- 
tical yet  between  which  there  exists  a  certain  kinship. 

*8  Sir  Henry  Sumner  Maine,  "Ancient  Law"  (London,  1906),  with  an 
Introduction  and  Notes  by  SirF.  Pollock,  chap,  ii,  p.  35. 
2»  Sir  Henry  Sumner  Maine,  ibid.  pp.  1 1  and  1 2. 


272          LAMBERT:   CODES   AND   CASES    [Cn.IX 

(a)  His  first  duty  is  to  impose  respect  for  existing  law. 
To  this  end,  his  main  effort  is  to  reach  a  decision  of  the 
question  litigated  before  him,  either  directly  from  the 
text  of  the  law  in  France,  and  from  judicial  precedent 
in  England;  or  indirectly  by  analogy  and  by  synthesis 
and  deduction.  Only  when  he  succeeds  by  the  first 
method,  can  he  be  said  to  limit  his  activity  to  declaring 
and  applying  existing  law.  (b)  But  legislation  in  France 
and  judicial  decisions  in  England  are  inevitably  deficient. 
The  court  is  necessarily  called  upon  to  cure  little  by 
little  the  deficiencies  of  the  law,  since  it  is  bound  to 
decide  any  and  all  juridical  questions  submitted  to  it, 
whether  or  not  law  or  precedent  has  answered  them  by 
anticipation;  whether  they  have  arisen  suddenly  out 
of  a  change  of  social  and  economic  conditions,  or  whether 
they  are  due  to  causes  already  old.  In  regulating  the 
new  legal  relationships  which  the  incessant  movement  of 
civilization  engenders,  the  court  cannot,  unless  it  is  to 
run  into  the  most  patent  absurdities  and  iniquities,  turn 
blindly  to  the  mere  machinery  of  interpretation.  Con- 
sciously or  not,  the  judge  in  these  cases  inevitably  has 
recourse  to  guides  and  reasons,  —  external  to  the  texts 
of  legislation  in  France  and  to  the  judicial  precedents  in 
England ;  he  must  search  for  a  solution  which  accords 
not  only  with  the  general  spirit  of  the  law,  but  also  with 
that  sort  of  contingent  and  natural  law  which  varies 
with  time  and  place,  which  Stephen  calls  the  "natural 
reason  of  the  thing,"  and  which  M.  Geny  calls  "la 
nature  des  choses  positives."  Even  then,  although  his 
decisions  always  appear  and  must  appear,  as  Stephen 
says,  to  be  a  declaration  and  a  recognition  of  existing 
law,  it  is  none  the  less  true,  as  Maine  so  well  demon- 
strated, that  they  essentially  form,  instantly  in  England, 
or  through  repetition  and  uniformity  in  France,  additions 
and  even  corrections  of  prior  existing  law.  In  England, 


§8]  THE   FICTION    OF   REASON  273 

as  also  in  France,  the  court  has,  therefore,  a  second 
function,  that  of  creating  law,  of  participating  in  the 
indispensable  work  of  juridical  evolution  and  progress. 

The  fiction  which  has  slipped  into  the  traditional 
doctrine  of  the  common  law  has  a  double  purpose:  to 
conceal  this  second  function  of  the  court,  and  to  conceal 
the  source  of  the  materials  used  by  the  judge  in  fulfilling 
his  first  function.  The  fiction  lies  in  attributing  the 
whole  production  of  judge-made  law  to  an  obscure  and 
mysterious  power,  the  impersonal  and  superhuman 
nature  of  which  gives  it  a  prestige  to  which  judgments 
could  not  pretend,  so  long  as  they  were  recognized  as 
the  work  of  officials,  mere  individuals,  known  to  be  sub- 
ject to  prejudice,  preconception  and  every  other  human 
weakness.  This  element  of  Reason,  which  clothes  itself 
in  the  speech  of  the  magistrate  and  controls  it  —  not 
unlike  the  god  of  antiquity  stirring  within  the  spirit  of 
the  oracle,  speaking  as  by  his  own  voice,  dictating  his 
judgments  and  cloaking  them  with  his  own  authority, — 
is  "immemorial  custom,"  sanctified  by  the  supposition 
of  a  universal  recognition,  of  a  universal  acceptance 
through  many  generations.  Thus  its  decisions,  by  the 
antiquity  attributed  to  them,  escape  the  suspicion 
and  opposition  that  would  be  provoked  by  any  avowed 
legislative  innovation  of  parliament  or  courts.  Whereas 
the  individual  opinions  of  judges  are  subject  to  error 
and  variation,  this  element  of  Reason  is  blessed  with 
infallibility  and  consistency.  Though  the  rules  estab- 
lished by  judicial  decisions  are  limited,  it  has  anti- 
cipated the  solution  of  all  legal  difficulties,  including 
those  which  will  arise  only  in  a  far  distant  future. 

Far  be  it  from  us  to  smile  at  this  fiction,  whose  childish- 
ness Maine  so  pitilessly  uncovered.  We  find  it  again 
in  many  forms.  It  is  justified  and  useful  in  every  coun- 
try where  the  mass  of  the  population  has  not  reached 


274          LAMBERT:   CODES  AND    CASES    [Cn.IX 

a  relatively  advanced  stage  of.social  and  juridical  educa- 
tion ;  after  that  it  survives  through  the  tyrannical  force 
of  habit.  The  sarcasm  which  Maine  employed  against 
the  jurists  of  his  own  country  rebounds  and  strikes  at 
the  majority  of  French  jurists,  —  all  those,  indeed,  who 
adhere  to  the  "school  of  expounders  of  the  Civil  Code." 
These  concede  to  the  legislator  the  functions  (or  rather 
one  of  them,  the  second)  which  the  English  conception 
assigns  to  immemorial  custom.  Upon  the  shoulders 
of  the  legislator  they  lay  the  responsibility  for  all  the 
innovations  which  judicial  legislation  daily  realizes 
under  the  imperative  pressure  of  novel  economic  require- 
ments and  under  the  domination  of  the  ceaseless  necessity 
to  do  and  to  live.  Too  often  the  judges,  themselves  the 
involuntary  instruments  of  the  transformations  of  our 
legal  system,  are  as  unconscious  of  the  throb  of  the  law 
and  the  evolution  going  on  about  them,  as  we  are  of 
the  rotation  of  the  earth. 

The  study  of  the  juridical  theory  of  the  sources  of 
English  law  is  rich  in  suggestion  to  the  French  jurist. 
In  finding  there,  in  an  even  more  striking  degree  and  con- 
sequently franker  and  cruder,  and  in  an  unaccustomed 
form,  the  fiction  upon  which  the  dominant  French 
method  still  rests,  he  realizes  better  than  before  its 
improbability  and  childishness.  To  the  Continental 
jurist,  whose  education  has  not  been  forced  into  those 
twists  of  mind  peculiar  to  the  English  practitioner,  it 
is  impossible  to  be  blind  to  the  truth  that  this  "imme- 
morial custom,"  from  which  it  is  claimed  an  answer  may 
be  drawn  for  every  new  case  and  which  regulates  institu- 
tions born  but  yesterday,  exists,  according  to  the  strik- 
ing expression  of  Maine,  only  "in  nubibus"  or  "in  gremio 
magistratuum." 

Was  this  illusion  of  to-day  ever  a  reality?  Did  the 
common  law,  which  so  long  has  grown  and  been  renewed 


§8]       CUSTOM   OF  THE   KING'S   COURT       275 

through  the  work  of  the  courts,  take  its  rise  in  the  rules 
and  maxims  of  custom,  as  denned  by  the  German  school 
of  writers  on  the  Pandects?  In  the  fragment  cited  from 
Maine's  "Ancient  Law"  that  author  does  not  hesitate 
to  deny  this.  And  his  opinion  is  confirmed  by  the  most 
learned  historians  of  English  legal  institutions  of  the 
Middle  Ages,  especially  by  Pollock  and  Maitland,  whose 
scholarship  can  scarcely  be  contested.  After  a  careful 
investigation  into  the  origin  of  the  common  law,  and 
the  reason  of  its  substitution  for  special  custom,  that 
is,  for  manorial  and  other  regional  jurisdictions,  these 
authors  conclude  that  the  general  custom  of  England, 
which  later  assumes  the  name  of  common  law,  could 
have  been  very  justly  defined  in  Bracton's  time  as  the 
"custom  of  the  King's  court"  or  "the  judicial  precedents 
of  the  King's  court."  They  have  pictured  this  custom  as 
developing  by  processes  familiar  to  every  system  of 
judge-made  law,  that  is,  through  judicial  decisions  and 
the  use  of  analogy.30  Though  it  would  certainly  be 
an  anachronism  to  attribute  to  the  time  of  Bracton  the 
modern  English  idea  of  case-law  (i.e.  the  authority 
of  precedent,  even  of  a  single  decision),  nevertheless 
in  the  early  period  there  already  existed  a  "consuetude 
curiae,"  a  mass  of  judicial  tradition.  This  was  at  first 
more  or  less  imperfectly  made  known  to  the  judges  by 
the  work  of  the  clerks,  but  it  gathered  strength  and 
precision  constantly  as  the  personnel  of  the  King's  court 
was  drawn  more  and  more  from  the  legal  profession.31 
But  we  are  not  to  believe  that  even  these  early  rulings 
of  the  King's  court,  which  gave  rise  to  the  common  law, 

so  Pollock  and  Maitland,  "History  of  English  Law"  (2d  ed.  1898, 
Cambridge)  vol.  i,  bk.  i,  chap,  vii,  p.  183  and  note  1,  quoting  Bracton, 
f.Lb.,  who  showed  well  the  functions  of  analogy  and  the  creative  role 
of  the  courts  in  the  adjudication  of  new  questions,  judgment  upon  which 
was  surrounded  with  a  special  solemnity. 

»  Ibid.,  pp.  173-184,  and  upon  the  transformation  of  the  King's  court, 
pp.  152  seq. 


276  LAMBERT:   CODES   AND    CASES    [Cn.ix 

faithfully  reflected  some  preexisting  body  of  actual 
customs  (in  the  Roman  and  canonical  sense  of  the  word) ; 
Pollock  and  Maitland  do  not  leave  us  even  this  remnant 
of  illusion.  These  authors  show  how  the  situation 
created  by  the  Norman  Conquest  (that  is,  the  contact 
of  peoples  who  had  up  to  then  lived  under  different 
systems  of  law),  forced  the  King's  court  to  adopt  methods 
of  eclecticism  and  compromise,  consequently  to  create 
law;  its  judgments  were  based  far  more  upon  reasons 
of  equity  than  of  strict  law.  On  the  one  hand,  this 
court,  made  up  of  persons  the  majority  of  whom  did 
not  understand  English,  could  not  consider  itself  bound 
to  apply  the  early  Anglo-Saxon  law;  on  the  other  hand, 
it  was  manifestly  impossible  to  derive  from  the  old  cus- 
toms of  Normandy  a  set  of  rules  to  cover  the  situations 
growing  out  of  the  conquest  and  the  establishment  of 
the  Normans  beyond  the  Channel.  Under  the  govern- 
ment of  the  Norman  King  there  was  something  more  than 
a  mere  transplanting  of  Norman  legal  precedent  into 
England;  a  new  body  of  judicial  law  was  gradually 
created  by  a  court  whose  personnel  was  imbued  with 
Norman  traditions.  Pollock  and  Maitland  describe 
it  in  these  terms:  "a  flexible,  occasional  jurisprudence, 
dealing  with  an  unprecedented  state  of  affairs,  meeting 
new  facts  by  new  expedients,  wavering  as  wavered  the 
balance  of  favor  between  him  (the  King)  and  his  barons, 
capable  of  receiving  impressions  from  without,  influenced 
by  the  growth  of  canon  law,  influenced  perhaps,  by 
Lombard  learning,  modern  in  the  midst  of  antique  sur- 
roundings."32 The  rules  which  formed  the  earliest 
basis  of  the  common  law  were,  therefore,  the  product 
of  a  fusion,  partly  of  elements  borrowed  from  various 
sources,  Anglo-Saxon,  Roman,  and  especially  Norman 
and  canonical,  and  partly  of  a  large  mass  of  material  of 

»«  Ibid.,  p.  108. 


§8]  CANON   LAW   DOCTRINE  277 

original  creation.  This  fusion  was  attained  by  the  con- 
tinuous labors  of  the  King's  court.  Thus,  to  judicial 
practice  the  common  law  owes  its  origin  as  well  as  its 
gradual  progress. 

English  writers  upon  the  genesis  and  evolution  of  the 
common  law^eveal,  clearly  enough,  it  would  seem,  the 
true  part  played  in  England  both  by  the  Roman  and 
canonical  doctrine  of  custom,  and  by  an  analogous 
doctrine  which,  in  imitation,  came  to  discover  in  custom, 
as  generating  cause  and  basis,  the  elements  of  spon- 
taneous usage  and  unanimous  acceptance  by  the  persons 
affected,  of  direct  and  instinctive  perception  of  the  law 
by  the  whole  body  of  the  people,  and  of  voluntary  sub- 
mission of  all  its  members  to  the  rules  thus  perceived. 
This  doctrine  forms  a  sort  of  screen,  behind  which  cus- 
tomary law  lives  and  moves,  concealing  its  activities 
and  deluding  the  public  into  a  belief  in  the  absolute 
fixity  of  a  system  of  law  which  is  all  the  while  the  subject 
of  continuous  transformation.  The  intrusion  of  this 
screen,  hiding  from  indiscreet  eyes  the  fluctuations  and 
the  processes  of  formation  of  the  law,  has  never  checked 
nor  deterred  the  development  of  that  species  of  custom 
which  has  preserved  its  productivity  and  vigor  to  our 
day,  that  is  to  say,  general  custom  or  common  law. 
And  English  jurists  made  no  claim  to  force  local  custom 
to  conform  to  the  fiction  which  up  to  that  moment  had 
served  only  to  protect  it,  until  the  time  when  that  mode 
of  production  of  law  ceased  to  meet  the  needs  and 
aspirations  of  English  society,  and  then  only  with  the 
object  of  realizing  within  a  short  period  its  almost  com- 
plete elimination. 

The  example  of  English  law  appears  to  us  absolutely 
conclusive.  It  is  useless  to  argue  as  an  objection  the 
individualistic  spirit  of  this  system  of  law.  Certainly 
it  is  not  in  this  characteristic  feature  of  English  law,  — 


278          LAMBERT:   CODES   AND    CASES    [CH.IX 

reverence  for  the  decided  case,  faith  in  the  unlimited 
authority  of  precedent,  even  when  isolated,  —  that  we 
must  search  for  the  cause  of  those  indissoluble  ties 
between  custom  and  judicial  decision  which  are  so 
clearly  revealed  by  even  a  superficial  observation  of 
the  operation  of  English  common  law. 

§  9.  Fallacy  of  the  English  Doctrine.  The  contra- 
diction of  ideas  contained  in  the  two  views  of  custom 
under  consideration  is  inherent  in  the  very  nature  of 
customary  law.  In  such  a  system  of  judicial  law,  as 
in  a  system  of  parliamentary  legislation,  the  judge  is 
called  upon  to  decide  the  questions  submitted  to  him, 
not  according  to  his  own  subjective  opinion,  but  accord- 
ing to  a  supposedly  preexisting  rule.  He  is  required 
to  declare,  not  what  seems  to  him  just,  but  what  the  law 
is.  He  is  under  a  duty  to  apply  a  custom,  and  in  theory 
he  may  judge  only  by  reference  to  it.  But,  to  apply  a 
custom  he  must  know  it,  and  it  is  not  known  until  the 
moment  when  he  applies  it.  This  vicious  circle  is  the 
inevitable  consequence  of  a  conflict  between  theory  and 
facts,  to  be  found  in  all  conditions  where  law  develops 
exclusively  or  principally  through  other  than  parliamen- 
tary channels,  as  is  the  case  to-day  in  Anglo-Saxon 
societies. 

If  we  search  in  English  legal  literature,  which  is  natur- 
ally more  authoritative  than  any  other  in  the  matter, 
for  a  definition  of  general  custom,  we  shall  meet  with 
many  differences,  according  as  we  consult  the  ordinary 
lawyer  or  the  scientific  student.  The  lawyer  (or  the 
author  of  a  treatise  on  the  law  who  grasps  only  the 
traditional  view,  often  made  up  of  fiction)  tells  us  that 
the  judges  of  his  country  have  never  had  the  power  to 
create  law,  that  their  decisions  conform  to  an  imme- 
morial custom,  every  element  of  which  is  as  ancient  as 
the  English  nation  itself,  though  many  of  them  have 


§9]        NATURE  OF   GENERAL   CUSTOM        279 

only  been  recognized  and  applied  for  the  first  time  in 
our  day.33  On  the  other  hand,  if  we  consult  those 
writers  who  have  devoted  their  energy  to  that  higher 
branch  of  legal  science  known  in  England  as  "juris- 
prudence," we  hear  a  very  different  story.  These 
writers,  accustomed  to  search  behind  legal  dogma  for 
the  sociological  reality,  tell  us  that  the  common  law  has 
been  largely  the  work  of  the  judges,  and  that  most  of 
its  rules  originate  in  legal  precedent.34 

§  10.  Courts  and  Legislature  as  Organs  of  Legal  Pro- 
duction. During  the  long  hours  which  I  have  devoted 
to  the  analysis  and  criticism  of  the  strange  tissue  of 
fictions  which  we  owe  to  the  Greek  and  Latin  rhetors 
and  to  the  compilers  of  the  Corpus  Juris,  the  canonists, 
the  glossators,  and  post-glossators,  the  leaders  of  the 
historical  school,  and  the  late  German  school  of  com- 
mentators of  the  Pandects,  I  have  had  constantly 
before  me  in  memory  one  of  the  most  impressive  passages 
in  Anatole  France's  "The  Well  of  St.  Clare."  He  is 
describing  the  dream  of  the  holy  man  Giovanni,  on  the 
eve  of  his  martyrdom  for  having  confessed  the  immacu- 
late and  candid  truth.  He  sees  a  great  living  wheel, 
made  of  a  multitude  of  men  of  all  ages  and  conditions. 
From  their  lips  issue  scrolls  bearing  devices  no  two  of 
which  are  of  the  same  color  or  sense,  but  all  of  which 

»»  The  doctrine  of  Blackstone  and  of  Stephen,  cf.  supra,  pp.  265  seq. ; 
Hammond,  in  "Lieber's  Hermeneutics,"  p.  312. 

»«  Holland,  "The  Elements  of  Jurisprudence"  (Oxford  University 
Press,  9th  ed.  1900),  pp.  61-62;  John  F.  Dillon,  "The  Laws  and  Juris- 
prudence of  England  and  America"  (Boston,  1894),  pp.  173  seq.,  229 
seq.;  Holmes,  "The  Common  Law,"  Lecture  I,  p.  35;  Pollock,  "First 
Book  of  Jurisprudence,"  pp.  229  seq.;  Markby,  "Elements  of  Law" 
(Oxford,  1896),  pp.  57-65;  Greer,  "Custom  in  the  Common  Law"  in  Law 
Quarterly  Review,  vol.  ix,  pp.  153  seq.;  Gray,  "Judicial  Precedents" 
in  Harvard  Law  Review,  vol.  ix,  pp.  27  seq.;  Austin,  "Lectures," 
II,  p.  655;  Bentham,  "Works,"  vol.  iv,  p.  460;  ibid.,  vol.  v,  p.  13; 
cf.  also  the  more  guarded  observations  of  Courtenay  liber t,  "Common 
Law  and  Statutory  Law,"  in  Journal  of  the  Society  of  Comparative 
Legislation  (1899),  n.  s.  vol.  iii,  pp.  407-416. 


280          LAMBERT:   CODES   AND    CASES    [CH.IX 

end  with  these  words:  "Such  is  Truth."  The  wheel 
contained  truths  of  every  shade  of  color;  but  one  was 
lacking,  —  the  pure,  white  truth.  And  as  the  holy 
man  laments  and  seeks  in  vain  upon  this  palette  of 
color  for  the  truth  for  which  he  is  about  to  die,  the  wheel 
begins  to  revolve.  As  its  speed  increases  the  colors 
run  into  one  another;  then  they  blend.  When  its 
movement  is  so  rapid  that  the  eye  no  longer  perceives 
its  motion,  but  gains  the  impression  that  it  is  still, 
the  wheel  appears  quite  white.  And  so  Giovanni  learns 
that  the  white  truth  is  made  up  of  all  the  variant  truths, 
just  as  white  is  made  of  all  the  colors. 

There  is  a  striking  resemblance  between  customary 
law  and  this  wheel  described  by  Anatole  France.  The 
truth  is  that  jurists  and  sociologists  must  give  up  hoping 
to  observe  customary  law  in  a  state  of  repose.  It  is 
never  at  rest.  But  its  movement,  at  first  timid  and 
halting,  is  accelerated  only  through  the  decisive  impul- 
sion of  judicial  decisions.  During  its  state  of  prepara- 
tion, before  it  has  been  judicially  established,  it  moves 
slowly  enough  for  its  elements,  of  infinite  variety,  to 
remain  distinguishable.  It  presents  then  the  spectacle 
of  struggle  and  of  a  brutal  conflict  of  individual 
interest.  .  .  .  But,  as  judicial  precedent,  com- 
municating its  own  energy  to  the  rudimentary  customary 
law,  abruptly  accelerates  its  motion,  the  multi-colored 
threads  in  which  the  fabric  of  custom  is  woven  cease  to 
be  visible.  The  whole  array  of  devices  in  which  the  par- 
ticipants in  the  struggle  formulate  their  opposing  pre- 
tensions, are  gradually  effaced.  Soon  are  perceived 
only  the  words  of  the  final  phrase:  "Such  is  Law."  It 
seems  as  though  all  that  multitude,  who  in  one  brief 
vision  filed  before  us,  had  the  same  words  upon  their 
lips. 


§10]  LEGISLATION   AND    CUSTOM  281 

Let  us  not  be  captivated  by  the  magic  of  words.  Let 
us  beware  of  that  antithesis,  so  seductive  at  first,  yet 
really  devoid  of  sense,  which  has  passed  from  text  to 
text  and  has  even  slipped  into  the  otherwise  admirable 
critique  by  M.  Geny.35  It  contrasts  legislation,  the  work 
of  volition  and  of  reflection,  the  manifestation  of  the 
freedom  of  social  will,  with  custom,  which  it  holds  to 
spring  from  the  action  of  "the  hidden  and  silent  forces 
pressing  about  us  and  from  all  the  surrounding  con- 
ditions in  which  we  move,  directing  us  unconsciously, 
.  operating  independently  of  our  wills  and  bending 
them."36  Legislation  no  more  than  custom  escapes 
from  the  tyrannical  force  of  sociological  laws.  The 
legislator  does  not  labor  freely  in  some  Utopia,  inde- 
pendent of  natural  forces;  and  when  he  attempts  to 
ignore  the  circumstances  of  the  period  and  the  place, 
and  to  shake  off  the  many  ties  attaching  him  to  earth, 
experience  quickly  undeceives  him.  Yet  on  the  other 
hand,  the  play  of  the  obscure  forces  of  nature  is  power- 
less of  itself  to  create  true  juridical  customs;  the  inces- 
sant collaboration  of  man  is  needed.  Officials  having 
special  knowledge,  be  they  the  diviners,  priests,  or  pon- 
tiffs of  antiquity,  or  the  judges  of  to-day,  do  not  passively 
preside  at  the  birth  of  custom.  Without  their  help, 
custom  would  never  be  separated  from  its  husk  of  mere 
manners.  They  select,  cultivate,  prune,  and  straighten 
the  spontaneous  growth  of  juridical  life.  Daily  they 
are  called  upon  to  discover  and  initiate,  and  to  exercise, 
in  the  name  of  the  people,  the  freedom  of  the  social  will. 

3*G6ny,  "Methode  d'interpretation  et  sources  en  droit  prive  positif," 
p.  359. 

3«  Deslandres,  "La  crise  de  la  science  politique,"  in  Revue  du  droit 
public  et  de  la  science  politique  (1901),  vol.  xvi,  pp.  69  seq.  The  author 
speaks  in  these  terms  of  the  international  phases  of  judicial  legislation, 
that  is  to  say,  of  one  of  the  forms  of  modern  custom. 


282          LAMBERT:   CODES   AND    CASES    [Cn.IX 

And  these  two  essential  methods  of  the  production 
of  law,  legislation  and  custom,  were  disassociated  only 
at  a  very  late  date  in  legal  history.  The  truth  is  that, 
while  the  same  elements  enter  into  the  composition  of 
both  legislative  and  customary  law,  they  do  not  do  so 
in  the  same  measure,  and  that  the  relative  proportions 
of  these  elements  in  each  grow  more  and  more  unequal 
as  we  approach  periods  of  higher  civilization.  It  is  also 
true  to-day  (it  has  been  very  far  from  true  in  the  past) 
that  the  legislature  and  courts  accomplish  a  function 
in  common  though  by  recourse  to  very  different  processes. 
The  work  of  the  courts  is  more  fragmentary  and  dis- 
connected, less  systematic.  It  conceals  its  creation 
behind  a  fallacious  appearance  of  establishing  or  applying 
preexisting  laws.  It  acts  consequently  with  much  less 
promptitude  and  resolution  than  the  legislature.  Each 
moment  it  comes  against  immovable  obstacles,  and  to 
avoid  them  it  is  forced  out  of  its  course. 

The  majority  of  those  jurists  who  expect  our  legis- 
lative laws  to  solve  the  fundamental  problems  of  juridical 
sociology,  and  who  imagine  that  our  parliaments  are 
competent  to  revise  and  codify  the  laws  of  social  evolu- 
tion, maintain  that  the  task  of  adjusting  the  law  to  the 
continuous  transformations  that  go  on  in  the  economic 
substructure  of  institutions  falls  wholly  and  solely  upon 
the  legislator.  If  this  were  true,  the  function  of  legal 
policy  would  be  exceedingly  modest.  .  .  .  It  is  a 
far  journey  from  the  ideal  to  the  reality.  The  ideal  is 
that  the  tendency  of  our  period  towards  legislation, 
combated  long  ago  in  vain  by  Savigny,  should  make 
itself  felt  more  rapidly  than  it  has  done37;  that  the 
legislator  should  aim  to  check  so  far  as  possible  the 
creative  action  of  judge-made  law  by  himself  under- 

»7  Durkheim,  "Division  du  travail  social,"  p.  427;  Duguit,  "L'Etat,  le 
droit  objectif  et  la  loi  positive,"  p.  89. 


§10]  PROVINCE   OF   LEGISLATION  283 

taking  regularly  the  revisions  necessary  to  adjust  the 
existing  system  of  laws  to  the  continual  change  taking 
place  in  social  and  economic  environment.  When  the 
legislator  does  deign  to  perform  personally  this  task, 
his  work  is  more  effectual  than  courts.  Officially  these 
are  established  only  to  interpret  and  apply  preexisting 
law.  They  interfere  to  create  a  rule  of  law  only  under 
the  irresistible  pressure  of  sociological  laws  which  con- 
tradict and  paralyze  the  accepted  formulae;  they  do 
this  timidly  and  regretfully.  Judicial  law  is  naturally 
conservative,  and  trails  but  slowly  after  the  changes  in 
usage  and  the  mutations  in  our  economic  life.  By  the 
mere  fact  that  it  must,  wherever  possible,  hide  its  inno- 
vations under  the  cover  of  interpretation,  it  arrives 
generally  only  by  tortuous  and  indirect  ways  at  a  goal 
which  the  legislature  may  gain  directly  and  conse- 
quently much  more  surely.  For  my  part  I  cannot 
agree  with  Josef  Kohler  in  commending  the  benefit  to 
be  derived  from  the  discipline  to  which  judicial  practice 
is  put  in  rendering  the  institutions  of  a  past  age  tolerable 
to-day,  and  in  maintaining  that  neither  Roman  nor 
English  law  would  enjoy  its  world  extension  were  it  not 
that  in  their  development  they  had  to  have  recourse  very 
largely  to  fiction.38  The  forces  which  propelled  the 
Roman  law  came  from  quite  other  causes.  As  to  English 
general  custom,  or  common  law  and  equity,  its  spread 
is  due  to  the  colonizing  traits  of  the  English  and  not  to 
any  merits  of  its  own.  Indeed,  on  the  contrary,  it  may 
be  noted  that  the  advance  of  legal  knowledge  has  been 
infinitely  less  rapid  in  England  than  the  general  advance 
of  civilizations,  and  that  this  is  due,  if  not. wholly,  at 
least  in  part,  to  the  sluggishness  and  inadequacy  of 

38  "Ueber  die  Methode  der  Rechtsvergleichung"  in  Zeitschrift  fur 
das  Privat-  und  offentliche  Recht  der  Gegenwart  (1901),  vol.  xxviii, 
p.  278. 


284          LAMBERT:   CODES  AND   CASES    fCn.lX 

legislation  in  that  country.  It  is  very  much  to  be  desired, 
therefore,  that  in  the  future  the  legislator  interfere  far 
oftener  than  hitherto,  in  order  to  direct  and  spur  on  the 
too  slow  evolution  of  judge-made  law. 

§  11.  Conclusion.  The  policies  of  legal  rules,  then, 
are  not  the  monopoly  of  the  legislator.  He  alone,  in 
effecting  those  policies,  employs  certain  expeditious 
and  perfected  methods.  But  he  is  not  alone  in  his  right 
to  consider  legal  policy.  He  has  two  collaborators,  — 
the  pronouncements  of  the  courts  and  the  practice  of  the 
profession.  These  other  workers,  using  different  methods, 
to  be  sure,  pursue  alongside  of  him  a  common  task,  — 
the  adaptation  of  the  law  to  social  forms  which  are  in 
a  constant  state  of  renewal.  All  who  live  in  the  atmo- 
sphere of  the  courts,  —  not  only  the  judges,  clerks, 
attorneys,  and  barristers,  but  also  the  notaries,  business 
men,  and  drafters  of  documents,  —  all  these,  whether 
consciously  or  not,  are  active  "sharers  in  legal  policy, 
The  value  of  legal  institutions,  in  any  country,  is  not 
dependent  solely  on  the  wisdom  and  activity  of  the 
legislator.  And  in  the  schools  of  law,  also,  legal  policy, 
therefore,  should  enter  logically  as  a  part  of  the  studies. 
There  it  becomes  that  "juridical  art,"  creative  and 
civilizing,  in  its  function,  such  as  it  has  been  conceived 
in  all  times  by  jurists  worthy  of  the  name  —  those  who 
in  the  heroic  periods  of  legal  history  were  the  true 
artificers  of  the  law.  And  the  phrases  "legal  policy" 
and  "policy  of  the  law,"  which  have  come  into  use  in  the 
last  few  years,  do  not  denote  a  new  science,  but  merely 
a  new  way  of  dealing  with  an  old  discipline. 

And  so  what  we  have  sought  to  show  is  that  the  extra- 
legislative  movements  in  law  which  occupy  so  important 
a  place  in  to-day's  activities  are  more  than  the  product 
of  the  blind  forces  of  nature;  that  they  operate  under 
the  direction  or  supervision  and  with  the  constant 


§11]  CONCLUSION  285 

cooperation  of  the  whole  body  of  men  of  the  law;  that 
the  task  of  framing  the  policies  of  a  nation  in  its  civil 
law  is  not  performed  solely  by  the  legislator,  but  also 
by  other  organs  of  the  law,  upon  which  is  exercised  an 
even  more  effective  and  constant  influence  through  the 
writings  of  jurists,  the  opinions  of  the  courts,  and  the 
practitioners  of  the  profession. 


286         WURZEL:  JURIDICAL  THINKING    [Cn.X 

CHAPTER  X 

METHODS  OF  JURIDICAL  THINKING1 
BY  KARL  GEORG  WURZEL 

INTRODUCTION 

§  1.  JURISPRUDENCE  AND  OTHER  SOCIAL  SCIENCES. 
I.    NATURE  AND  QUALITIES  OF  JURIDICAL  THINKING 

§  2.  POPULAR  NOTIONS.  —  §  3.  POSTULATES  OF  JURISPRU- 
DENCE. —  §  4.  LACK  OF  BIAS  OF  THE  JUDGE.  —  §  5.  CER- 
TAINTY OF  THE  LAW. 

II.  THE   PREVALENT   THEORY  OF  INTERPRETATION: 
CRITICAL  EXAMINATION  OF  ITS  PRINCIPAL  TENETS 

§  6.  GENERAL  SURVEY;  THE  PRINCIPAL  DEFECT.  —  §  7. 
THE  RESULTS  OF  INTERPRETATION  CLASSIFIED  IN  AC- 
CORDANCE WITH  THE  PREVALENT  THEORY.  —  §  8.  CRITI- 
CISM OF  THIS  CLASSIFICATION.  —  §  9.  THE  METHODS  OF 
INTERPRETATION  CLASSIFIED  IN  ACCORDANCE  WITH 
THE  PREVALENT  THEORY.  —  §  10.  REASON  ("RATIO")  OF 
THE  LAW.— §11.  NEED  FOR  A  THEORY  OF  JURIDICAL 
THINKING. 

III.  SCOPE  OF  JURIDICAL  THINKING,  ESPECIALLY  ITS 

RELATION  TO  INTERPRETATION 

§  12.  ITS  LIMITATION  IN  PRINCIPLE.—  §  13.  SOME  POSI- 
TIVE OBSERVATIONS  REGARDING  THE  SCOPE  OF  JURIDICAL 

1  Translated  from  the  monograph  entitled  "Das  Juristische  Denken," 
Vienna,  1904  (Verlag  Moritz  Perles),  by  Ernest  Bruncken. 


FOREWORD  287 

THINKING.  —  §  14.  A  LOGICAL  DIGRESSION.  —  §  15.  APPLI- 
CATION OF  THE  ABOVE  PRINCIPLES  TO  LEGAL  CONCEPTS; 
PROJECTION.  —  §  16.  THE  LEGISLATOR. 

IV.    THE  PRINCIPAL  METHODS  OF  INTERPRETATION 

§  17.  GENERAL  SURVEY.  —  §  18.  THE  TENDENCY  TO- 
WARDS UNITY.  —  §  19.  THE  CONSERVATIVE  TENDENCY. 

V.    THE  SUBJECT-MATTERS  OF  PROJECTION 

§  20.  GENERAL  SURVEY.  —  §  21.  RELATION  BETWEEN 
JURIDICAL  THINKING  AND  ETHICAL  INFLUENCES.— 
§22.  RELATION  BETWEEN  JURIDICAL  THINKING  AND 
ECONOMIC  PHENOMENA.  —  §  23.  THE  PLACE  OF  THE  SUB- 
JECT-MATTERS OF  PROJECTION  IN  THE  CLASSIFICATION 
OF  THE  ENTIRE  SUBJECT-MATTER  OF  JURIDICAL  THINK- 
ING INTO  FACTS  AND  RULES. 

VI.    VARIOUS  SPECIAL  SUBJECTS 

§  24.  THE  ANALOGY  OF  PARTICULAR  LEGAL  RULES.  — 
§25.  THE  PROOF  OF  SO-CALLED  MENTAL  FACTS,  ESPE- 
CIALLY THE  INTENTION  OF  PARTIES.  —  §  26.  "SAFETY- 
VALVE  CONCEPTS."—  §  27.  "SAFETY-VALVE  CONCEPTS" 
CONTINUED. 

VII.    CONCLUSION 

§  28.  THE  PREVALENT  THEORY  OF  INTERPRETATION  AS 
EXPRESSION  OF  A  SOCIAL  NEED.  —  §  29.  LEGAL  TRUTH 
—  §  30.  SOME  RANDOM  REMARKS  ON  BRINGING  JURISPRU- 
DENCE INTO  CLOSER  RELATIONS  WITH  OTHER  SOCIAL 
SCIENCES. 


FOREWORD 


This  paper  is  not  to  be  a  philosophical  work  but  a 
juridical  one.     In  order  to  keep  it  such,  notwithstanding 


288         WURZEL:   JURIDICAL  THINKING    [CH.X 

the  abstract  character  of  its  subject,  I  have  tried  to 
maintain  the  connection  with  the  matters  of  which  legal 
writings  usually  treat  by  as  many  and  as  concrete  ex- 
amples as  possible  to  illustrate  general  propositions. 
I  believe  that  concrete  illustrations  are  often  more 
effective  to  make  a  point  than  a  long  chain  of  theoretical 
deductions.  For  this  reason  I  have  frequently  contented 
myself  with  simply  offering  a  number  of  examples  to 
prove  some  general  proposition,  trusting  that  the  reader 
will  himself  make  the  theoretical  connection  between 
the  one  and  the  other.  Whether  I  was  right  in  doing  so 
will  depend  to  a  large  extent  on  whether  the  reader 
attaches  the  same  degree  of  importance  to  actual  facts 
that  I  do.  Right  here  at  the  start  I  think  it  advisable 
to  lay  stress  on  the  purely  positivistic  character  of  my 
work,  just  because  it  is  intended  primarily  for  lawyers. 
For  no  class  of  men  are  so  much  inclined  as  lawyers  to 
adopt  a  teleological  mode  of  thinking,  to  postulate,  to 
reform,  and  in  all  sorts  of  ways  to  lose  sight  of  the  facts 
as  they  actually  are.  The  purpose  of  this  paper,  how- 
ever, is  solely  to  examine  and  describe  facts  as  they  are. 
The  fine  maxim,  "Je  ne  propose  rien,  je  ne  suppose 
rien,  j'expose,"  must  be  the  first  principle  of  scientific 
inquiry. 

Being  a  work  of  general  juridical  nature  this  paper 
properly  ought  to  be  classifiable  with  no  particular  branch 
of  the  law.  Yet  it  is  most  closely  connected  with  pri- 
vate law  and  draws  from  this  most  of  its  illustrations. 
This  is  because  in  this  branch  the  specifically  juridical 
manner  of  thinking  has  been  most  distinctly  elaborated 
by  the  labor  of  many  centuries;  because  in  this  branch 
a  theory  of  juridical  thought  (in  connection  with  the 
administration  and  interpretation  of  the  law)  has 
actually  been  established,  although  it  has  proved  to  be 
insufficient;  and  further  because  in  private  law  (and  also 


FOREWORD  289 

in  penal  law)  it  is  admitted  that  the  legal  mode  of  thought 
is  exclusively  applicable.  In  this  field,  judgments  are 
to  be  based  exclusively  on  legal  rules  and  legal  reasons, 
never  on  grounds  of  policy  or  other  considerations. 
Closely  allied  to  this  principle  there  is  the  fiction  that 
the  legal  rules  actually  existing  are  sufficient  to  decide 
all  contested  cases,  provided  only  that  they  are  applied 
in  proper  legal  manner.2 

1  have  called  this  paper  a  study.    It  does  not  purport 
to  comprehend  uniformly  all  phases  of  juridical  thought, 
nor  is  it  intended  to  be  a  systematic  treatise  on  the 
administration  of  the  law.      It  deals  merely  with  a  few 
important  but  sorely  neglected  aspects  of  the  subject. 
This    involves  necessarily  a  certain    one-sidedness    of 
presentation.   The  new  illustrative  material  takes  up  the 
greater  portion  of  space.     This,  however,  I  consider  a 
lesser  defect  than  the  absence  of  concreteness  which 
would  have  been  caused  by  any  different  method.    For 
this  book  is  not  intended  for  inexperienced  persons  who 
might  be  misled  at  once  to  draw  premature  consequences 
and  make  hasty  "demands"  on  the  basis  of  my  state- 
ments,  notwithstanding   the  qualifications  with   which 
they  are  made.     It  is  intended  for  those  who  are  able 
themselves  to  place  the  new  data  into  proper  relations 
with  their  own  previous  experience  and  the  traditional 
theory. 

INTRODUCTION 

§  1.  Jurisprudence  and  Other  Social  Sciences.  Juris- 
prudence was  the  first  of  the  social  sciences  to  be  born. 
Of  all  men,  judges  and  legislators  were  the  first  that  found 
themselves  compelled  to  seek  a  clear  and  conscious 
knowledge  of  the  principles  according  to  which  human 

2  Cf .  Code  Civil,  art.  iv;  also,  Menger,  "System  des  osterreichischen 
Zivilprozesses,"  §  11,  note  2. 


290        WURZEL:  JURIDICAL  THINKING    [Cn.x 

beings  live  together.  Such  knowledge  of  the  foundations 
of  society  was  first  acquired  by  learning  to  distinguish 
right  and  wrong.  This  preceded  by  a  long  way  any 
merely  theoretical  curiosity  and  was  produced  by  the 
necessities  of  life.  As  soon  as  the  unconscious  and  un- 
organized coercion  of  custom  was  no  longer  sufficient 
to  regulate  the  acts  of  individuals  because,  having 
arrived  at  greater  intellectual  independence  they  began 
to  have  doubts  about  following  their  impulses  as  before,3 
law  arose  in  order  to  avoid,  or  mediate  between,  con- 
flicts of  will,4  and  became  the  embodiment  of  the  rules 
necessary  for  the  regulation  of  human  conduct  so  far  as 
they  entered  into  the  consciousness  of  men. 

At  first  this  conscious  knowledge  of  social  principles, 
taking  the  form  of  knowing  the  law,  was  limited  to  a  few 
subject-matters,  first  of  all  to  economic  needs.  Next 
the  preservation  of  life  and  health  was  included,5  further, 
the  protection  of  the  State  and  its  established  order; 
last  of  all  came  ethical  requirements.  In  a  one-sided 
manner,  the  object  aimed  at  was  at  first  merely  media- 
tion between  the  conflicting  wills  of  parties.  Thus 
primitive  law  was  crude,  imperfect,  and  clinging  to  mere 
externals.6  The  most  obvious  things  only  were  taken 
hold  of.  As  the  comprehension  of  law  advanced,  how- 
ever, it  became  necessary  to  go  beyond  considering  merely 
the  external  form  assumed  by  conflicts  of  human  wills, 

8  Vierkandt,  "Natur  und  Kult.urvolker." 

1  Roscher,  "System  der  Volkswirtschaft,"  vol.  1,  section  16. 

6  Wundt,  "Ethik." 

6  Comp.  Jhering,  "Geist  des  romischen  Rechts,"  on  the  discrepancy 
between  the  law  as  it  really  was  and  as  it  was  formulated.  —  For  example: 
the  evolution  of  traffic  by  barter  gradually  reduces  the  custom  of  lengthy 
higgling,  which  in  the  Orient  even  to-day  sometimes  takes  days.  Now 
what  an  awkward  way  of  formulating  this  social  tendency  is  the  old 
Athenian  statute  prohibiting  hawkers  in  the  marketplace  from  sitting 
down.  Or  another:  incapable  of  comprehending  the  true  socially  obnox- 
ious element  in  robbery  or  murder,  old  Germanic  laws  punish  "lying 
in  wait  along  the  highway." 


§1]  LAW  AND  SOCIAL  SCIENCE  291 

else  the  legal  rules  would  have  failed  to  be  even  approxi- 
mately in  accord  with  the  real  world  and  the  causal 
connection  of  occurrences,  which  are  often  so  well  con- 
cealed. Consequently  the  law  began  to  pay  attention 
to  very  different  phenomena  of  psychological  and  social 
life,  and  recognized  gradually  that  these  had  a  close  con- 
nection with  those  conflicts  of  human  wills.  Thus  the 
law  began  to  examine,  long  before  any  later  and  inde- 
pendent sciences,  created  by  purely  theoretical  interests, 
took  up  the  study  of  such  matters,  a  large  number  of 
phenomena:  logical  and  psychological  ones,  such  as 
will,  purpose,  intention,  declaration,  error,  coercion, 
passion;  economic  ones,  like  estate,  value,  price,  utility; 
linguistic  ones,  like  sentences,  meanings;  ethical  phe- 
nomena, such  as  liberty,  personality,  honesty;  political 
ones,  like  order,  public  authority,  etc.  During  the  early 
stages  of  the  development  of  law  popular  notions  were 
exclusively  available  for  the  necessary  knowledge  re- 
garding these  things,  and  all  too  often  law  had  to  work 
with  mere  substitutes  for  real  knowledge,  in  the  form  of 
conceptions  not  thought  out  but  obscurely  felt.  For 
centuries,  if  not  for  thousands  of  years,  the  law  had  to  get 
along  with  these  as  best  it  could. 

It  was  but  late,  after  law  had  developed  into  a  scien- 
tific form  of  jurisprudence,  that  a  succession  of  other 
social  sciences  arose :  such  are  politics,  ethics,  economics, 
logic,  individual  and  social  psychology,  philology,  the 
history  of  civilization,  statistics,  etc.,  and  finally  the 
most  generalized  of  all  these  sciences,  sociology.  Some 
of  these  branches  of  knowledge  did  not  arise  until  quite 
recently,  while  others  were  but  lately  made  really 
fertile  by  a  more  elaborate  division  of  labor  or  the  inven- 
tion of  new  methods  of  work.7  Each  of  them  treats  from 

7  I  call  to  mind  comparative  etymology,  the  study  of  the  forms  of 
landholding,  or  statistics  as  a  scientific  method. 


292        WURZEL:  JURIDICAL  THINKING    [CH.X 

a  different  point  of  view  subject-matters  which  either  are 
identical  with  those  of  jurisprudence8  or  are  closely  con- 
nected with  the  latter  and  mutually  interact  with  them. 
It  is  necessary  for  the  science  of  law  to  keep  in  con- 
stant touch  with  these  sciences,  else  it  cannot  supply 
the  needs  of  life  and  will  fall  behind  more  and  more.    The 
rapid  development  of  the  other  social  sciences  frequently 
proves  false  to-day  what  yesterday  was  universally  held 
to  be  true.     Is  it  possible,  for  instance,  to  retain  in  its 
entire  extent  a  theory  of  criminal  guilt  built  up  on  the 
belief  in  individual  freedom  of  the  will,  if  the  hypotheses 
of  Lombroso  regarding  born  criminals  should  be  substan- 
tiated, or  in  the  face  of  the  statistical  results  that  throw 
light  on  the  dependence  of  the  frequency  and  nature  of 
crimes  upon  certain  conditions  of  environment?9    Must 
not  these  things  affect  both  the  courts  and  the  legislature? 
It  is  the  business  of  legal  science  constantly  to  assimilate 
the  results  of  investigations  in  other  scientific  fields,  to 
appropriate  new  truths  regarding  the  interaction  of  social 
phenomena,  and  to  make  use  of  the  clarified  conceptions 
of  other  sciences.    The  preparatory  work  is  in  part  done 
by  these  sciences  themselves.     Within  the  complex  of 
facts  with  which  they  deal  law  takes  up  so  much  room 
that  they  cannot  fail  to  look  at  it  from  their  peculiar 
points  of  view  and  to  try  their  methods  and  results  upon  it. 
Yet,  all  these  sciences,  even  apart  from  the  fact  that 
they  and  the  lawyer  lack  common  points  of  departure 
and  convergence,  treat  of  law  only  in  its  most  general 
aspects.     In  the  formation  of  law  they  proceed  at  most 
as  far  as  the  creation  of  the  various  legal  institutions  and 

>  The  law  of  private  property  deals  with  phenomena  almost  identical 
with  the  subject-matter  of  economics;  similarly,  public  law  has  nearly 
the  same  subject-matter  as  political  science. 

•  How  profoundly  these  new  ideas  have  affected  all  schools  of  penology, 
became  very  evident  from  the  discussions  and  proposals  at  the  Congress 
of  German  Jurists  in  the  year  1902. 


§1]  LAW  AND  SOCIAL  SCIENCE  293 

principles;  the  application  of  law  and  its  technical 
formulation  are,  however,  the  peculiar  domains  of  juris- 
prudence and  are  naturally  never  entered  upon  by  those 
other  sciences.  Thus  the  latter  remain  at  the  gate  of 
legal  science  proper.  Jurisprudence  itself  must  go  to  work 
and  make  their  fruits  available  for  the  administration  of 
justice. 

This  need  has  not  hitherto  been  supplied  with  clear 
consciousness  of  purpose.  It  is  true  that  in  legal  history 
it  is  customary  to  keep  in  touch  with  other  historical 
sciences  even  when  treating  of  the  administration  of  law, 
in  accordance  with  the  actually  existing  connection  be- 
tween legal  and  other  social  phenomena.10  It  is  different, 
however,  in  practice,  regarding  the  examination  of  the 
living  law.  Here  one  usually  turns  for  comparison 
merely  to  other  legal  branches,  dealing  with  matters 
separated  in  time  or  space,  but  hardly  ever  considers  the 
points  of  view  or  the  results  of  other  social  sciences. 
Yet  this. is  indispensable  for  jurisprudence,  if  one  does 
not  confine  its  task  to  merely  knowing  legal  principles  as 
they  stand,  but  wishes  to  understand  also  the  reasons 
for  their  development,  their  psychological  character, 
and  especially  their  functions,  which  can  never  be 
separated  from  the  social  reaction  upon  them.11  For  it  is 
impossible  to  understand  one  aspect  of  social  life  with- 
out knowing  its  connection  with  other  aspects.12 

10  Social  conditions  in  which  customary  law  prevails  are  generally  of 
che  greatest  interest  for  historical  research.     At  this  stage  legislation 
and  administration  of  justice  are  not  very  strictly  distinguished. 

11  For  instance,  the  reason  why,  in  the  Civil  Law  as  formerly  in 
force  in  parts  of  Germany,  women  were  permitted  to  waive  the  pro- 
visions of  the  "Senatusconsultum  Vellejanum,"  according  to  which  they 
could  not  be  sureties,  becomes  very  much  clearer  when  we  remember 
that  in  consequence  of  the  development  of  the  credit  system  this  com- 
pulsory disability,  which  originally  was  intended  to  benefit  women, 
had  become  a  troublesome  obstacle  to  their  capacity  of  doing  business. 
It  was  similar  with  regard  to  the  prohibition  of  taking  interest. 

"  Roscher,  "Volkswirtschaft,"  section  18. 


294         WURZEL:   JURIDICAL  THINKING    [Cn.X 

f 

To  be  sure,  the  transference  here  contemplated  is  far 
more  difficult  than,  for  example,  the  science  of  com- 
parative law,  because  here  we  have  not  a  question  of 
comparing  similarities  and  dissimilarities,  but  rather  of 
finding  hidden  connections  between  phenomena  that  are 
apparently  quite  heterogeneous. 

However,  the  principal  obstacle  to  the  conscious 
introduction  of  new  points  of  view  in  the  application  of 
law  is  found  in  certain  common  notions,  certain  tra- 
ditional methods,  which  lawyers  employ  half  uncon- 
sciously rather  than  with  complete  comprehension  of  their 
nature.  These  grew  up  at  a  time  when  the  law  still 
stood  by  itself  and  was  simply  the  crystallization  of 
popular  notions;  but  they  are  clung  to  instinctively,  and 
taken  altogether  they  constitute  the  peculiar  character 
of  specifically  legal  ways  of  thinking.  In  part  they  are 
deeply  founded  upon  the  peculiar  objects  of  legal  thought, 
and  are  the  products  of  a  course  of  historical  develop- 
ment. In  part,  however,  they  are  nothing  but  the  residue 
of  ideas  long  abandoned,  which  are  habitually  handed 
on  like  current  coin  without  being  looked  at  or  examined. 
Thereby  they  produce  among  legal  thinkers  a  certain 
feeling  of  self-sufficiency  that  prevents  the  growth  of  a 
desire  for  further  investigation,  so  that  legal  thinking  is 
apt  to  be  content  when  relatively  brief  progress  has  been 
made.  The  desire  to  question  further  stops  when  certain 
apparent  explanations  have  been  reached.  These  are 
characteristics  which,  according  to  Comte,  are  peculiar 
to  the  metaphysical  stage  in  the  development  of  a  science. 

It  is  the  purpose  of  these  inquiries  to  throw  a  little 
light  upon  these  semi-obscure  regions  of  thought  peculiar 
to  our  special  science. 


§2]  POPULAR  NOTIONS  295 

I.  NATURE  AND  QUALITIES  OF  JURIDICAL  THINKING 
§  2.  Popular  Notions.  The  declared  purpose  of  legal 
study  at  a  university  is  not  to  acquire  a  more  or  less 
extensive  acquaintance  with  the  law,  but  training  in 
juridical  thinking.  No  principle  is  valued  so  highly  by 
lawyers  as  this  proposition  that  their  science  does  not 
consist  simply  in  knowledge  of  the  law.  (It  may  be 
admitted  that  the  pride  with  which  lawyers  have  a  way 
of  asserting  this,  especially  in  the  presence  of  over- 
curious  laymen,  sometimes  reminds  one  of  the  time  when 
"notitia  legis"  was  a  secret  lore  of  a  few  adepts.)  In 
practice,  if  a  lawyer  wishes  to  disprove  some  assertion 
and  cannot  do  so  by  direct  reference  to  the  statute,  he 
invariably  tries  to  show  that  such  an  assertion  cannot  be 
reconciled  with  the  legal  method  of  thinking.  Juridical 
thinking,  sometimes  called  strict  juridical  thinking,  is 
something  the  lawyer  is  supposed  to  have  ever  at  his 
right  elbow,  both  as  a  tool  and  as  a  postulate. 

Now,  what  is  this  thing  called  juridical  thinking? 
What  are  its  principles  and  qualities?  How  is  it  distin- 
guished from  ordinary  non-juridical  thinking?  Is  it  a 
distinct  sub-species  of  logic  —  which  on  its  face  is  im- 
probable —  or  is  it  simply  a  method  specifically  adapted 
to  the  subject-matter  of  law.13  People's  minds  are  by  no 
means  clear  about  these  questions,  and  yet  juridical 
thinking  is  the  means  of  drawing  a  great  many  conclu- 
sions and  inferences,  of  furnishing  arguments,  and  of  de- 
ciding numerous  lawsuits  and  controversies.  Somebody 

»  The  significant  thing  about  mere  "method"  is  that  its  rules  are 
always  taken,  openly  or  surreptitiously,  from  the  subject  to  which  they 
are  to  be  applied.  Method  is  not  purely  a  formal  law  of  thought.  The 
choice  of  a  method  of  research  into  a  subject-matter  is  itself  the  expression 
of  an  opinion  (in  a  way  a  preconceived  opinion)  regarding  the  nature  of 
the  subject.  For  instance,  by  choosing  for  linguistic  or  economic  in- 
vestigations either  the  historical,  statistical,  organic,  or  some  other 
method,  one  betrays  at  once  the  point  of  view  from  which  one  looks  at 
these  things,  and  will  arrive  at  different  results  accordingly. 


296        WURZEL:  JURIDICAL  THINKING    [CH.X 

has  said  that  by  virtue  of  a  logical  conclusion  the 
ax  of  the  hangman  may  fall  on  the  head  of  a  man  or  the 
doors  of  the  prison  close  upon  another,  and  the  conclusion 
is  held  to  be  logical  if  it  is  in  accordance  with  the  juridical 
method  of  thinking. 

The  prevailing  views  regarding  the  nature  of  juridical 
thinking  oscillate  between  one  extreme  and  the  other. 
Sometimes,  in  speaking  of  lawyers  and  their  trade,  one 
thinks  of  cold,  calculating  severity,  of  rigor  and  aus- 
terity. This  has  regard  to  the  outside  of  law,  its 
external  and  militant  functions.  To  use  the  expressions 
of  Herbert  Spencer,  lawyers,  like  soldiers,  are  considered 
as  the  exodermous  tissue  of  the  social  organism.  The 
judge  is  pictured,  as  described  in  old  German  law,  as 
sitting  before  the  people  like  a  fierce  lion.  It  is  the  notion 
of  "jus  militans,"  of  the  penal  law. 

From  another  standpoint,  whence  one  may  enter 
much  deeper  into  the  intimate  life  of  the  world  of  juridical 
thought,  there  comes  the  most  prevalent  and  most  fre- 
quently encountered  notion.  According  to  this,  lawyers 
are  endowed  with  great  but  rather  impractical  sagacity. 
One  is  reminded  of  finesse,  subtlety,  hairsplitting,  and 
such  things.  These  opinions,  based  principally  on 
experiences  with  private  law,  used  to  find  expression  in 
numerous  punning  sayings  against  the  civilian  "perverters 
of  justice," 14  which  showed  the  popular  hatred  of  lawyers. 
Even  to-day  there  exists  a  vague  fear  of  legal  tricks,  back- 
door devices,  of  "  Paragraphenreiter"  (manipulators  of 
statutory  provisions),  and  of  "India  rubber  provisions." 
No  doubt  such  notions  must  be  blamed  principally  on 
the  ignorance  of  the  lay  public  and  certain  perversions  of 
juridical  thinking  such  as  Jhering  (in  "Scherz  und  Ernst 
in  der  Jurisprudenz")  has  castigated  with  mordant 
humor.  Yet  there  is  usually  a  kernel  of  truth  in  such 

>«  "Jurista  nequista,"  "Juristen  bose  Christen,"  etc. 


§2]        POSTULATES  OF  JURISPRUDENCE       297 

widely  spread  popular  opinions.  This  fact  will  furnish 
food  for  thought  that  other  sciences  are  given  to  empha- 
sizing that  jurisprudence,  like  logic  and  mathematics, 
is  a  formal  science,  meaning  thereby  that  the  science  of 
law  merely  treats  with  the  forms  of  human  thought  but 
lacks  actuality,  i.e.  agreement  with  some  real,  external 
object,  or  at  least  lacks  this  to  a  considerable  extent. 
Differently,  however,  from  logic  and  mathematics, 
jurisprudence  makes  the  claim  that  it  has  reality,  i.e. 
that  it  does  actually  supply  a  knowledge  of  positively 
existing  matters.  Under  these  circumstances  to  call 
legal  science  formal  implies  a  charge  of  sophistical  dia- 
lectics, and  some  thinkers  (for  example  Vierkandt) 
have  not  been  afraid  to  express  that  charge. 

§  3.  Postulates  of  Jurisprudence.  Jurisprudence  does 
not  claim  general  and  accepted  characteristics  of  its 
method,  except  in  the  case  of  the  theory  of  interpreta- 
tion. It  does,  however,  insist  on  certain  postulates  or 
ideals,  as  is  agreeable  to  its  normative  character.  One 
of  these  postulates  is  the  absence  of  passion,  bias,  pre- 
judice; another  is  certainty  or  consequentiality,  so  that 
a  judgment  may  be  foreseen. 

Thus  for  instance,  Jhering  says: 

"An  immovable  sense  of  security  is  the  state  of  mind  produced 
by  Law.  If  Justice  herself  could  come  down  from  heaven,  take  up 
the  stylus  and  engrave  a  statute  so  definite,  exact,  and  detailed  that 
its  application  would  become  a  mere  mechanical  calculation,  a 
condition  would  arise  than  which  a  more  perfect  administration  of 
the  Law  could  not  be  conceived." 

It  is  at  a  much  later  time  that  a  third  postulate  appears, 
a  postulate  which  at  the  present  time  is  beginning  to 
show  itself  quite  frequently:  Juridical  thinking  is  to 
adapt  itself  to  practical  needs;  it  is  to  be  practical; 
where  conditions  require,  it  is  to  have  even  the  courage  of 
being  illogical.  This  third  ideal  is  considered  to  be 


298        WURZEL:   JURIDICAL  THINKING    [CH.X 

inconsistent  with  the  second,  yet  there  is  no  tendency  to 
give  up  one  or  the  other,  or  to  devise  means  to  solve  the 
inconsistency  by  delimiting  the  spheres  of  influence  of 
both  principles. 

The  ideals  here  enumerated  are  of  importance  for  the 
investigation  of  the  characteristics  of  juridical  thinking, 
because  they  seem  to  point  out  essential  qualities  of  such 
thinking  and  show  the  way  our  inquiries  must  take.  It 
is  from  this  point  of  view  that  we  propose  to  examine 
briefly  the  first  two  of  the  above  postulates.  The  third 
we  shall  not  examine  separately  because  it  is  so  closely 
connected  with  the  ideal  of  certainty,  and  also  because 
it  is  so  infinitely  complicated.  For  it  is  mixed  up  with 
the  whole  mass  of  social  interests. 

§  4.  Dispassionateness  of  the  Judge.  Every  emotion, 
whether  of  the  kind  psychologists  call  sthenic,  or  of  the 
asthenic  sort,  implies  a  narrowing  of  the  field  of  conscious 
action.  It  favors  unreasoned,  associative  (i.e.,  deter- 
mined by  external  factors),  or  impulsive  mental  activity 
over  a  form  of  thinking  proceeding  with  due  considera- 
tion according  to  the  categories  of  logic,  especially  the 
principle  of  causality  (apperceptive  thinking,  to  use  the 
terminology  of  Wundt).  Briefly,  every  emotion  lessens 
the  capacity  of  the  intellect  to  see  the  truth,  it  makes 
partially  blind.  Passionless  absence  of  emotion  is  a 
prerequisite  of  all  scientific  thinking,  that  is,  thinking 
directed  to  the  recognition  of  external  truths. 

The  reason  why  this  requirement  was  insisted  on  by 
lawyers  at  so  early  a  period  must  be  sought  in  the 
circumstance  that  the  judge  is  exposed  more  than  any 
other  thinker  to  emotional  influences.  He  must  come 
to  his  conclusion  among  the  struggles  of  contending 
parties.  While  in  the  case  of  other  sciences  conflicts 
of  wills  mean  annoying  interference,  they  are  the  natural 
environment  for  jurisprudence,  in  which  it  carries  on  its 


§4]  DISPASSIONATENESS  299 

life  functions.  Moreover,  the  results  of  juridical  think- 
ing at  once  become  matters  of  practical  importance  and 
touch  the  very  nerve  of  life.  Errors  produced  by  emo- 
tion are  felt  most  often  and  easiest  in  the  field  of  legal 
thinking,  and  it  is  for  this  reason  that  lawyers  were  the 
first  and  the  most  emphatic  in  insisting  on  the  absence 
of  emotional  bias. 

The  general  public,  with  its  deficient  understanding  of 
psychology,  includes  in  this  requirement  merely  the 
absence  of  individual  emotions  in  the  widest  sense, 
"prejudice  and  bias  for  or  against  either  party."  That 
amounts,  generally  speaking,  to  the  reasons  which  make 
a  judge  or  juror  incapable  of  acting  according  to  most 
codes  of  procedure,  such  as  personal  interest,  kinship, 
and  the  like.  Modern  social  science,  however,  has  shown 
that  there  exist,  in  addition  to  the  influence  of  such 
individual  emotions,  a  multitude  of  social  feelings  which 
exercise  a  determining  influence  on  the  way  we  think  of 
and  judge  other  persons.  Such  social  feelings  may  be  of  a 
national  or  political,  professional,  religious  character, 
may  be  produced  by  class,  occupation,  or  other  circum- 
stances that  produce  a  feeling  of  solidarity ;  or  they  may 
be  based  on  ethical  tendencies,  historical  traditions,  in- 
herited value  judgments,  and  so  forth.  The  more  general 
and  constant  nature  of  such  feelings  is  the  reason  why 
they  do  not  usually  take  the  form  of  an  acute  emotion 
and  do  not,  generally  speaking,  enter  into  individual 
consciousness  at  all  but  remain  below  its  threshold. 
Just  the  same,  or  perhaps  for  that  very  reason,  they  are 
apt  to  obscure  the  logical  quality  of  thought  and  judg- 
ment in  a  manner  quite  obvious  to  a  really  unbiased 
observer.  Anyone  who  desires  a  large  number  of  exam- 
ples showing  how  it  is  by  no  means  enough,  in  order  to 
be  unbiased  in  regard  to  social  currents  by  which  one  is 
himself  carried  along,  if  one  has  the  intention  of  being 


300         WURZEL:   JURIDICAL  THINKING    [Cn.X 

unbiased,  cannot  do  better  than  to  turn  to  Spencer's 
"The  Study  of  Sociology.15  There  he  will  learn  how  our 
attitude  towards  the  world,  our  whole  way  of  thinking, 
is  covered  by  a  network  of  tendencies  and  cross-tenden- 
cies, how  under  their  influence  the  same  phenomenon 
may  meet  with  the  most  various  judgments  although 
the  critics  are  all  imbued  with  the  most  upright  desire 
for  the  truth.  Modern  logic  (see  the  writings  of  Wundt, 
Erdmann,  Sigwart,  etc.),  which  has  generally  come 
close  to  psychology,  explains  these  unconscious  disturb- 
ances of  correct  thinking  very  well  indeed. 

In  this  connection  a  question  arises  which  cannot  be 
answered  until  we  have  progressed  farther  with  our  in- 
quiry. Does  the  requirement  of  lack  of  bias  mean  that 
the  judge  must  also  disengage  his  reasoning  from  the 
influence  of  all  these  social  feelings?  Must  we  take  the 
saying  "pereat  mundus,  fiat  justitia,"  not  ironically  but 
pathetically?  Should  the  judge  actually  comply  with  the 
demand  of  Spinoza  and  never  blame  or  praise  anything 
human  but  only  understand  it?  Must  he  purify  his 
thought  of  everything  but  logical  reasoning  and  get  rid 
of  all  feeling,  whether  individual  or  social,  that  may  dis- 
turb his  logic?  Is  such  purification  possible  to  all? 
Does  it  ever  exist? 

§  5.  Certainty  of  the  Law.  There  are  two  aspects  of  the 
certainty  of  the  law,  just  as  there  are  two  aspects  of  its 
uncertainty.  One  has  reference  to  the  actual  enforce- 
ment of  recognized  (i.e.  existing)  law,  and  the  rarity 

"  I  cannot  resist  the  temptation  to  recall  an  excellent  observation  of 
Nietzsche  to  the  effect  that  we  are  by  no  means  indifferent  to  our  own 
concepts  and  mental  images,  but  are  fond  of  some  and  constantly  recall 
them,  while  we  have  a  dislike  for  others  and  try  to  exclude  them  as 
much  as  possible.  We  may  mention  such  ideas  as  death  and  illness. 
In  the  face  of  every  mathematical  calculation  the  chances  of  winning 
always  look  greater  than  they  are  to  the  gambler,  because  he  is  con- 
stantly calling  them  up  in  his  mind.  This  is  the  reason  why  lotteries, 
raffles,  and  the  like  are  so  immensely  profitable. 


§5]  CERTAINTY  301 

of  conscious  violations.  This  aspect  was  in  the  mind  of 
the  Oriental  sage  who  represented  the  ideal  legal  condition 
as  one  in  which  a  beautiful  woman,  adorned  with  all 
manner  of  precious  ornaments,  might  travel  throughout 
the  country  alone.  This  kind  of  certainty  of  law  was 
missed  very  much  throughout  mediaeval  Europe. 
Up  to  a  certain  point  law  must  always  yield  to  the  cir- 
cumstances, else  it  cannot  be  taken  for  real  or  positive 
law.  Where  within  a  society  (not  necessarily  with 
regard  to  strangers)  robbery  is  a  general  custom,  it  is 
evident  that  the  conception  of  property  is  so  little  devel- 
oped that  one  cannot  speak  truly  of  the  violation  of 
property  rights.  Where  all  are  stealing  none  is  a  thief,  as 
a  Russian  proverb  aptly  puts  it.  It  must  be  possible,  to 
some  degree  at  least,  to  consider  the  rules  of  law  as  the 
natural  laws  of  society.  What  ought  to  be  must  to  some 
extent  be  identical  with  what  is.16  But  the  degree  of  this 
identity  varies.  It  will  rise  as  the  State  becomes  stronger, 
for  the  State  represents  the  feeling  of  solidarity  of  all 
members  of  the  nation.  The  State,  as  a  matter  of  fact, 
has  substantially  succeeded  in  establishing  the  certainty 
of  law  in  this  sense.  Open  opposition  by  force  has  been 
suppressed  almost  entirely.  The  battle  is  now  against 
the  more  insidious  forms  of  opposition,  such  as  corrup- 
tion, theft,  the  concealment  of  criminal  acts,  abuse  of 
legal  process,  as  well  as  against  negligent  disregard  of  law. 
The  other  aspect  of  uncertainty  of  law  is  caused  by  the 
difficulty  of  knowing  what  the  law  is.  An  example  of 

l*Bierling  ("Kritik  der  juristischen  Grundbegriffe,"  vol.  2,  sects.  250, 
257,  and  excursus  B,  page  353)  differs  from  the  above  in  part.  He 
opposes  Zilelmann,  who  draws  a  parallel  between  natural  and  juridical 
law  in  his  work  entitled  "Irrtum  und  Rechtsgeschaft."  Natural  laws 
are  distinguished  from  normative  laws  by  their  absolute  universality. 
They  tolerate  no  exceptions  and  are  therefore  conceived  as  qualities  of  the 
objects  themselves,  while  norms  of  law  or  morality  are  external  com- 
mands derived  from  some  third  authority  such  as  God,  the  State,  etc. 
(Comp.  Wundt,  in  the  introduction  to  his  "Ethik.") 


302         WURZEL:   JURIDICAL  THINKING    [CH.X 

confusion  of  law  is  afforded  by  the  conditions  prevailing 
in  Germany  after  the  reception  of  the  Roman  law. 
The  remedy  against  this  kind  of  uncertainty  must  be 
found  in  the  perfection  of  legal  science.  The  postulate 
of  certainty  in  juridical  thinking,  which  was  mentioned 
above,  has  to  do  with  this  aspect  of  legal  certainty  only. 
It  has  reference  to  the  degree  of  certainty  with  which 
may  be  discovered,  in  each  case  of  a  conflict  of  wills, 
what  the  law  is  in  regard  thereto.  The  characteristic 
of  the  highest  possible  degree  of  such  certainty  would 
be  that  all  results  of  juridical  thinking,  in  other  words 
all  decisions  of  the  courts,  would  be  uniform  and  pre- 
dictable, i.e.  could  be  exactly  calculated  in  advance. 

Now  have  we  a  right  to  call  this  postulate  of  certainty 
the  distinguishing  and  characteristic  quality  of  juridical 
thinking?  Is  this  its  specific  form  of  precision  and  exact- 
ness? I  am  afraid  the  answer  must  be  in  the  negative, 
although  I  appreciate  fully  the  progress  made  in  this 
direction  and  do  not  wish  to  make  unscientific  and  extreme 
statements.17  I  might  cite  a  number  of  expressions 
that  seem  to  be  based  on  a  similar  conclusion.  While  the 
codification  of  the  civil  law  of  the  German  Empire  was  in 
progress,  some  men  of  the  highest  learning  and  official 
position  took  occasion  to  express  the  opinion  and  ex- 
pectation that  some  of  the  defects  for  which  the  draft 
code  was  blamed  would  in  practice  be  remedied  by  the 
courts.  Evidently  this  implied  the  presumption  that  the 
courts  might  interpret  the  same  statute  either  one  way  or 
another  without  offending  against  their  legal  duties  and 
especially  the  canons  of  juridical  thinking. 

It  implies  the  assumption  of  a  considerable  degree  of 
elasticity  of  juridical  thinking,  when  von  Schey  is  of  the 
opinion  that  legal  science  will  find  ways  and  means  of 

17  Some  people  have  even  talked  about  fashions  in  the  administration 
of  justice. 


§5]  CERTAINTY  303 

emphasizing  economic  considerations  as  opposed  to  the 
purely  abstract  treatment  of  the  law  of  property  in  the 
German  code  provisions,18  or  when  Dernburg  suggests 
to  the  courts  that  they  help  out  the  defects  of  the  code 
in  connection  with  the  prohibition  of  counterclaims  in 
case  of  actions  for  certain  kinds  of  wages  by  the  manner 
in  which  they  apply  the  law  of  liens;  or  when,  as  Exner 
does  here  in  Austria  in  his  treatise  on  "Hypotheken- 
recht"  19  the  courts  are  asked  to  find  a  remedy  for  the  in- 
equitable results  sometimes  following  confusion  of  goods 
when  a  mortgage  is  extinguished.  Still  more  important 
than  such  individual  views  are  legal  institutions  which 
are  evidently  based  on  similar  assumptions.  The  forms  of 
civil  procedure  are  obviously  arranged  on  the  assumption 
that  ordinarily  each  party  is  convinced  that  he  is  right.20 
This  is  particularly  apparent  in  those  jurisdictions  where 
the  losing  party  does  not  necessarily  have  to  bear  the 
costs.  For  if  conscious  wrongdoing  were  involved,  it 
would  not  be  sufficient  that  the  wrong  be  declared  to  be 
such  and  a  remedy  afforded.  The  wrongdoer  ought 
also  to  be  punished. 

The  matter  is  still  clearer  in  connection  with  the  insti- 
tution of  advocacy.  If  in  a  criminal  proceeding  it  is  the 
business  of  the  attorney  for  the  prosecution  to  demand 
punishment,  while  the  attorney  for  the  defense  will 
ordinarily  conclude  that  the  facts,  which  possibly  are 
undisputed,  require  a  verdict  of  not  guilty,  one  would 
have  to  call  that  whole  institution  immoral,  if  it  were  true 
that  correct  juridical  thinking  always  had  to  draw  exact 
conclusions  from  a  given  state  of  facts.  For  one  or 

18  Paper  read  before  the  Law  Society  at  Vienna,  February  5,  1902. 

"  Section  20. 

20  That  implies  an  admission  that  the  parties  may  infer  the  existence 
of  opposite  rights  from  the  same  state  of  facts.  In  this  connection  we 
must  exclude  those  cases  where  the  facts  themselves  are  doubtful  and 
are  not  ascertained  except  in  the  course  of  the  trial. 


304        WURZEL:  JURIDICAL  THINKING    [Cn.X 

the  other,  either  prosecutor  or  defender,  must  then  be 
either  an  ignoramus  or  a  perverter  of  justice. 

Similarly,  the  ineradicable  opposition  between  theoreti- 
cal thinkers  and  the  actual  practice  of  the  courts  indi- 
cates the  elasticity  of  juridical  thinking.  In  the  resulting 
warfare,  the  courts  are  given  to  ignoring  the  authority 
of  theoretical  jurists,21  while  these  retaliate  with  polemical 
writings.  Again,  there  are  numerous  scientific  contro- 
versies evidently  not  capable  of  settlement  by  simple 
exchange  of  arguments.22  Later  on,  we  shall  show  how 
this  uncertainty  is  partially  concealed  by  representing 
a  large  part  of  juridical  thinking  as  an  inquiry  into  the 
facts.  This  does  not,  to  be  sure,  eliminate  the  coefficient 
of  uncertainty,  but  for  reasons  of  proper  decorum  re- 
moves it  to  a  place  where  it  does  not  create  the  impres- 
sion as  if  the  judge  himself  were  incapable.  If  the 
fact  of  uncertainty  is  to  be  seen  in  all  its  nakedness, 
one  has  but  to  observe  the  guessing  process  that  goes  on 
regarding  the  decisions  of  our  courts  of  last  instance, 
in  which  the  facts  are  taken  as  they  were  found  in  the 
courts  below,  and  where  ordinarily  there  is  but  one  ques- 
tion: What  is  the  law  applicable  to  these  facts? 

A  layman  is  likely  to  be  surprised  and  annoyed  if 
in  case  of  a  legal  dispute  he  cannot  get  a  categorical 
answer  or  is  given  several  conflicting  opinions.  Accord- 
ing to  his  idea  that  is  what  lawyers  are  for:  to  give  defin- 
ite answers.  The  lawyer  himself  has  become  used  to  this 
condition  of  things,  but  ordinarily  he  does  not  give  an 
account  of  himself  regarding  the  general  reasons  for  such 
uncertainty.  Frequently  negligence  in  the  drafting  of 

»'  Opinions  rendered  by  lawyers  will  not  be  considered  by  the  courts. 
Compare  with  this  the  high  importance  attached  by  our  courts  to  expert 
opinions  rendered  by  university  faculties  of  medicine. 

M  For  instance,  let  anybody  submit  the  collection  of  civil  cases  made 
by  Jhering  ("Zivilrechtsfalle  ohne  Entscheidungen")  to  a  number  of 
jurists  for  their  opinions. 


§5]  CERTAINTY  305 

statutes  is  blamed  for  such  controversies.  There  is  often 
some  truth  in  this,  but  this  feature  falls  far  short  of  cover- 
ing the  whole  field  of  legal  uncertainty.  Aside  from  this, 
however,  lawyers  are  mostly  without  general  notions 
regarding  this  matter  and  content  themselves  with  talking 
vaguely  about  the  difficulty  of  particular  cases.  This 
explains  the  reasons  for  the  complaints  frequently  made, 
that  it  is  impossible  to  train  practical  lawyers  by  academic 
instruction.23  The  young  lawyer  is  usually  quite  un- 
prepared for  this  greatest  difficulty  in  the  administration 
of  law.  He  leaves  the  law  school  with  courageous  con- 
fidence in  his  ability  to  solve  problems,  and  learns  by 
slow  experience  how  difficult  they  are,  till  gradually  he 
gets  rid  of  intellectual  conceit  and  rashness.24  These  are 
questions,  however,  which  I  shall  no  more  than  suggest, 
and  instead  we  may  now  come  to  the  following  conclu- 
sion: 

This  second  ideal,  certainty  of  the  law,  also  fails  to 
justify  us  in  inferring  that  such  certainty  is  a  character- 
istic quality  of  juridical  thinking.25  It  is  necessary,  there- 
fore, to  inquire  what  may  be  the  reason  for  such  uncer- 
tainty, by  what  means  it  has  been  mitigated,  and  how 
and  to  what  extent  it  may  be  still  further  mitigated. 

II.    THE    CURRENT   THEORY    OF    INTERPRETATION: 
CRITICAL  EXAMINATION  OF  ITS  PRINCIPAL  TENETS 

§  6.  General  Survey;  the  Principal  Defect.  In  the 
science  of  private  law,  a  doctrine  has  been  evolved  which 
comes  nearest  to  being  a  theory  of  juridical  thinking. 
That  is  the  doctrine  of  interpretation,  sometimes  called 

*»  It  also  explains  all  kinds  of  projects  to  reform,  such  as  the  establish- 
ment of  a  sort  of  legal  clinic  at  the  universities. 

24  Comp.  the  sarcasm  Jhering  directs  against  his  own  youthful  experi- 
ences in  "Scherz  und  Ernst  in  der  Jurisprudenz." 

«  One  would  incline  to  think  that  the  ideal  was  generated  by  the  very 
fact  that  this  quality  was  not  found  to  exist. 


306         WURZEL:   JURIDICAL  THINKING    [Cn.X 

legal  hermeneutics.  I  want  to  anticipate  here  that  this 
does  not  comprise  the  whole  subject-matter  of  the  field 
of  juridical  thinking.  It  neglects  the  technics  of  legis- 
lation, further  the  phenomenon  which  later  will  be 
described  as  "projection,"  i.e.  the  projection  of  a  legal 
conception  upon  the  facts,  and  generally  the  entire  great 
field  which  forms  the  boundary  between  the  mere  finding 
of  facts  and  interpretation  proper. 

Aside,  however,  from  the  limitation  of  its  subject- 
matter,  this  doctrine  labors  under  a  cardinal  error  that 
renders  it  almost  valueless.  The  propositions  which 
guide  interpretation,  and  generally  the  administration 
of  law,  are  not  conceived  simply  as  natural  regularities 
but  as  directions,  in  other  words  they  are  themselves 
considered  as  legal  rules. 

This  phenomenon  is  evidence  of  an  acquired  habit  of 
lawyers.  They  are  constantly  occupied  with  manifesta- 
tions of  will,  such  as  rules  or  orders.  Consequently  they 
tend  to  see  all  things  from  the  point  of  view  of  a  purpose, 
never  simply  as  something  which  exists.  A  lawyer  does 
not  simply  wish  to  investigate  the  natural  laws  by 
which  things  are  as  they  are,  but  to  regulate  and  rule 
them.  It  is  quite  evident  that  this  starting  point  in  the 
doctrine  of  interpretation  is  erroneous,  that  is,  it  cannot 
produce  results  corresponding  with  the  real  world.  For 
the  rules  governing  the  interpretation  of  law  are  not  them- 
selves law,  or  the  result  of  legislative  will.  The  legislator 
may  command  or  prohibit.  He  must  needs  choose  such 
means  of  expressing  his  commands  as  are  comprehensible 
to  those  to  whom  they  are  directed.  If  a  command 
is  ineffective,  on  account  of  being  misunderstood  or  the 
like,  the  legislator  may  supplement  it  by  a  new  command, 
differently  expressed.  It  is  not  within  his  power,  how- 
ever, by  making  rules  to  increase  the  measure  of  com- 
prehension with  which  his  commands  are  received, 


§61  INTERPRETATION  307 

to  regulate  and  improve  by  arbitrary  rules  the  interpre- 
tation, that  is,  the  sense  in  which  other  minds  accept  the 
expressions  he  uses.  He  can  do  nothing  but  make  a  rule. 
The  manner  in  which  it  is  understood  is  governed  by 
general  social,  psychological,  logical,  linguistic,  or  other 
natural  laws.26 

The  laws  governing  interpretation  are  natural  laws, 
not  legal  norms.  Or  does  anybody  imagine  that  any 
misconception  will  be  prevented  or  the  interpretation 
in  any  manner  affected,  when  a  statute  provides  some- 
thing like  this:  "In  applying  a  statute,  no  meaning  shall 
be  given  to  it  except  such  as  appears  from  the  specific 
sense  of  the  words  in  their  context  and  the  clear  inten- 
tion of  the  legislator"?  (Austrian  Civil  Code,  §6.) 
Just  as  it  suffices  if  a  law  provides  for  something  so  that 
it  would  be  logically27  useless  expressly  to  provide  for 
obeying  such  a  law,  just  so  does  it  suffice  if  the  legislator 
expresses  his  intention  in  an  intelligible  manner,  and  it  is 
superfluous  to  add  the  rules  by  which  his  expression  may 
be  understood.28 

However,  this  proposition  must  be  taken  with  a  very 
important  reservation.  Very  frequently  new  rules  of 
law  are  concealed  in  what  has  the  form  of  rules  of  inter- 
pretation, in  a  manner  similar  to  cases  where  a  new  rule 
of  law  pretends  to  be  merely  declaratory  of  an  existing 
one.29  This  is  easily  explained  for  anybody  who  has  a 

26  This  is  aptly  put  by  Unger  in  the  introduction  to  his  "System  des 
osterreichischen  Rechts":    "The   key  to    the   understanding   of   a  code 
must  be  procured  elsewhere  than  in  the  code  itself." 

27  Psychologically,  the  matter  may  have  a  different  aspect,  as  is  shown 
by  the  effect  of  republication  or  impressive  repetition  of  rules. 

23  As  a  matter  of  fact,  the  custom  is  disappearing  from  modern  legis- 
lation. 

29  It  is  by  no  means  a  matter  of  indifference  whether  the  legislator 
commands  the  application  of  a  rule  with  or  without  extension  to  analo- 
gous cases.  This  command,  however,  is  an  additional  expression  of  his 
will,  not  contained  in  the  other  provisions  of  the  statute.  It  is  in  reality 
not  a  rule  of  interpretation  but  a  new  rule  of  law.  Compare,  inter  alia, 


308         WURZEL:   JURIDICAL  THINKING    [Cn.X 

clear  idea  of  the  similar  phenomenon  which  Jhering,  in 
his  "Geist  des  romischen  Rechts"  calls  the  crystalliza- 
tion of  legal  rules  into  legal  concepts.  At  a  certain 
stage  in  the  technics  of  lawmaking,  it  is  common  for 
laws  to  lose  their  imperative  form  of  direct  command 
and  assume  instead  the  form  of  abstract  concepts  from 
which  the  direct  commands  have  to  be  inferred.  The 
expressions  defining  such  abstract  concepts,30  however, 
have  the  same  or  greater  effect  as  new  direct  commands, 
although  they  are  clothed  in  the  form  of  mere  interpreta- 
tion.31 The  science  of  interpretation  must  not  allow 
itself  to  be  misled  by  this.  The  legislator  may  choose  any 
form  he  pleases  for  his  commands,  but  it  is  the  business 
of  jurisprudence  to  reveal  the  true  nature  of  legal  rules 
no  matter  in  what  form  they  may  be  concealed.  Real 
rules  of  interpretation  must  be  sought  where  they  ac- 
tually may  be  found,  by  tracing  the  treatment  to  which 
formulated  legal  rules  are  subjected  in  the  course  of 
actually  applying  them. 

The  theory  of  interpretation  as  it  is  found  in  books 
on  private  and  criminal  law,  and  occasionally  in  those 
on  procedure,32  usually  confines  itself  to  considering 
laws  taking  the  form  of  rules  or  commands.  These  are 
comparatively  rare  in  modern  statutes.  Consequently  it 
is  common  to  go  back  to  the  Civil  Law  and  refer  to  the 
"Corpus  Juris,"  as  if  the  opinion  of  some  Roman  or 

such  rules  of  interpretation  as  "in  dubio  contra  fiscum,"  or  "quotiens 
dubia  interpretatio  libertatis  est,  secundum  libertatem  respondendum 
erit." 

80  See  Thol,  "Einleitung  in  das  deutsche  Privatrecht,"  section  33,  on 
rules  denning  concepts.     Comp.  also  Bierling,  "Zur  Kritik  juristischer 
Grundbegriffe,"  vol.  2,  section   13;     Merkel's  article  in    Holzendorff's 
"Enzyklopadie  der  Rechtswissenschaften." 

81  For  instance:  where  a  statute  provides  that  parents  must  leave  to 
each  child  a  portion  of  their  estate,  and  continues:    "Adopted  children 
are  included  in  the  term  children"    (Austrian  Civil  Code   §  763),  the 
last  clause  has  the  form  of  an  interpretative  rule  but  is  in  reality  a  new 
rule  of  law  extending  the  right  to  a  portion  to  adopted  children. 

12  E.  g.,  Anton  Menger,  "Der  osterreichische  Zivilprozess." 


§6]  THE  CURRENT  THEORY  309 

Civil  Law  jurist  were  decisive  for  all  time  on  questions 
like  this :  whether  specific  provisions  may  be  extended  by 
analogy33 ;  whether  logical  interpretation  may  go  beyond 
the  possible  meaning  of  a  word,34  whether  "cessante  ra- 
tione  cessat  lex  ipsa."  For  this  reason  works  on  legal 
hermeneutics  are  apt  to  be  excessively  full  of  Latin 
sentences  and  Roman  technical  terms,  although  in  sys- 
tematic treatises  the  chapters  on  this  subject  are  apt  to 
be  briefer.  No  matter  how  much  we  may  acknowledge 
the  tact  and  the  gift  of  intuition  found  among  Civil  Law 
jurists,  it  must.be  admitted  that  they  were  ignorant  of 
many  phases  of  social  function  with  which  we  have  be- 
come familiar  by  statistical,  economic,  and  similar 
studies.  Therefore  we  are  not  relieved  of  independent 
investigation  when  we  have  found  some  dictum  of  the 
Civil  Law.  It  is  true  that  those  old  jurists  often  judged 
excellently  on  specific  and  particular  cases;  yet  their 
rules  of  interpretation,  which  should  naturally  be  of  a 
general  character,  are  frequently  nothing  but  generaliza- 
tions made  in  a  one-sided  manner  out  of  a  decision  apply- 
ing merely  to  such  specific  and  particular  case. 

That  is  the  reason  why  the  rules  of  interpretation,  as 
they  are  actually  found  in  the  Civil  Law,  are  so  full  of 
contradictions.35  For  instance,  if  it  is  a  question  of  pre- 
venting a  legal  rule  from  being  twisted,  it  is  said:  "Cum 
in  verbis  nulla  ambiguitas  est,  non  debet  admitti  volun- 
tatis  quaestio"  (De  legibus  et  senatus  consultis,  Digest 
I,  3);  or,  in  connection  with  wills,  "non  aliter  a  signifi- 
catione  verborum  recedere  oportet  quam  si  manifestum 

33  "Quod  contra  juris  rationem  receptum  est,  non  est  producendum 
ad  consequentias." 

34  Unger's  "System,"  chapter  3,  section  3,  par.  2;  and  note  33,  where 
the  author  disagrees  with  Schomann. 

35  Hence GeorgFrenzel  ("Recht  und  Rechtssatze,"  Leipzig  1892,  p.  40) 
says  truly  that  there  is  always  a  possibility  of  several  "lawyer-like  opera- 
tions" to  extract  a  clear  rule  from  an  ambiguous  statute,  and  that  the 
courts  must  select  one  of  these. 


310        WURZEL:  JURIDICAL  THINKING    [CH.X 

est  aliud  sensisse  testatorem."  But  at  another  time 
it  is  said,  "Sed  etsi  maxime  verba  legis  hunc  habent 
intellectum,  tamen  mens  legislatoris  aliud  vult";  or, 
"Non  dubium  est  in  legem  committere  eum  qui  verba 
legis  amplexus  contr&  legis  nititur  voluntatem."  If 
one  intends  to  apply  a  rule  without  distinction  it  is  said, 
"Lege  non  distinguente  nee  nostrum  est  distinguere," 
or  "et  ideo  rationes  eorum  quae  constituuntur  inquiri 
non  oportet."  But  where  the  sense  of  justice  refuses  to 
consent  to  a  strict  application  of  the  rule,  you  may  say: 
"Placuit  in  omnibus  rebus  praecipuam  esse  justitiae 
aequitatisque  quam  stricti  juris  rationem,"36  or  cite  the 
famous  "cessante  legis  ratione  cessat  lex  ipsa."  If  one 
wishes  to  restrict  a  rule  to  its  original  field  of  application 
it  is  said  that  "exceptio  firmat  regulam  in  casibus  non 
exceptis,"  or  more  specifically,  "Cum  lex  in  praeteritum 
quid  indulget  in  futurum  vetat"  (the  so-called  "argu- 
mentum  a  contrario");  but  if  one  wants  to  extend 
the  rule  there  is  a  simple  reply:  "Unius  positio  non  est 
exclusio  alterius.  Ratio  ubi  eadem  convenit,  idem  juris 
est."  37 

It  is  interesting  to  see  commentaries  and  systematic 
treatises38  labor  to  reconcile  all  these  contradictory 
maxims  by  a  thousand  provisos  and  qualifications. 

§  7.  Results  of  Interpretation  Classified  in  Accord- 
ance with  the  Prevalent  Theory.  The  Romanizing  doctrine 
of  interpretation  posits  as  its  goal  the  ascertaining  of  the 
meaning  (intention,  contents,  will,  "mens,"  "sententia," 
etc.)  of  the  legal  rule.  It  lays  particular  stress  on  finding 
the  relation  between  the  "sense"  and  the  "text"  of  a 

*•  "Aequitas"  means  a  fair  consideration  of  individual  differences. 

"  Comp.  Codex  Theresianus,  v.  86:  "Where  the  reason  for  a  law  is 
the  same,  the  law  must  be  the  same."  ("Ubi  eadem  legis  ratio,  ibi 
eadem  dispositio.") 

»»  Comp.,  for  instance,  the  chapters  on  the  theory  of  interpretation 
in  Unger's  "System." 


§7]  KINDS  OF  INTERPRETATION  311 

formulated  rule.  This  relation  differs,  according  as  the 
ascertained  sense  is  coextensive  with  the  text,  or  di- 
verges in  varying  degrees.  Thus  is  obtained  the  well- 
known  scale,  as  follows: 

1.  "Interpretatio  extensiva,"  where  the  sense  is  broader  than  the 
text. 

2.  "Interpretatio   lata,"   where   the   text   is   ambiguous  and   is 
liberally  construed. 

3.  "Interpretatio  declarativa,"  where  text  and  meaning  are  co- 
extensive and  unambiguous. 

4.  "Interpretatio  stricta,"  where  the  text  is  ambiguous  and  is 
construed  strictly. 

5.  "Interpretatio  restrictiva,"   where  the  meaning  is  narrower 
than  the  text. 

The  whole  taken  together  constitutes  "interpretatio 
declarativa"  in  its  wider  sense. 

Some  add  to  the  scale  the  case  where  the  meaning 
differs  from  the  text  ("interpretatio  obrogans,"  or 
corrective  interpretation);  others  deny  the  propriety 
of  this  subdivision.  The  case  is  really  a  combination  of 
cases  one  and  five. 

This  table  ought  to  be  supplemented,  however,  by 
putting  as  the  first  subdivision  interpretation  by  analogy, 
and  as  the  last  subdivision  interpretation  by  solving 
an  antinomy.  The  former  exists  where  notwithstanding 
a  broad  interpretation  the  meaning  will  not  cover  the 
given  state  of  facts,  and  yet  the  rule  is  applied.  The 
other  is  used  where  a  given  state  of  facts  will  be  fitted 
equally  by  two  possible  meanings  of  a  rule,  even  after 
the  rule  has  been  strictly  construed.  These  two  sub- 
divisions are  formed,  not  by  merely  considering  the  re- 
lation of  text  and  sense,  but  by  considering  also  the 
relation  between  the  state  of  facts  and  the  sense.  For 
this  very  reason  the  use  of  these  forms  of  interpretation 
is  apt  to  cause  the  most  obstinate  contentions,  as  will 
be  further  considered  below. 


312        WURZEL:  JURIDICAL  THINKING    [CH.X 

The  scheme  of  sevenfold  subdivision  of  the  results  of 
interpretation,  thus  arrived  at  by  adding  interpretation 
by  analogy  and  by  solution  of  antinomies,  is  exhaustive 
and  covers  the  whole  field,  as  will  appear  from  a  logical 
examination.  For  it  runs  through  all  the  intermediate 
steps  from  the  case  where  even  the  widest  possible 
sense  given  to  the  text  is  insufficient  to  the  case  where 
even  the  narrowest  meaning  of  which  the  text  is  suscepti- 
ble still  leaves  more  than  one  possible  application  of  the 
rule  to  the  facts.39 

§  8.  Criticism  of  this  Classification.  The  first  demand 
to  be  made  of  a  proposed  scheme  of  subdivision  is 
that  it  shall  employ  characteristics  that  may  actually 
be  recognized,  so  that  the  scheme  is  capable  of  being 

39  This  being  so,  it  is  surprising  that  some  legal  authors  speak  of 
"development  of  the  contents  of  the  statute"  ("Entwicklung  des  Rechts- 
inhalts")  as  a  separate  mental  operation,  without  making  plain  why  the 
single  mental  operation  directed  towards  finding,  from  the  text  of  the 
statute,  what  the  legal  rule  is,  should  be  divided  into  two  distinct  opera- 
tions. Commonly  this  "development"  is  disposed  of  very  briefly  by 
giving  a  few  illustrative  forms  of  reasoning.  (See  Unger's  "System  des 
osterreichischen  Privatrechts,"  section  3,  sub  lit.  B.)  What  is  in- 
cluded, is  substantially  the  following: 

1.  Inference  of  the  means  intended  from  the  purpose  declared. 

2.  "Conclusio  a  majori  ad  minus." 

3.  "Conclusio  a  minor!  ad  majus." 

Possibly  one  might  add  the  principle  which  prohibits  "in  fraudem 
legis  agere." 

Opinions  differ  whether  the  "argumentum  a  contrario"  should  be 
counted  as  "development"  or  interpretation.  However,  the  division  into 
interpretation  and  "development"  lacks  clearness  and  should  not  be 
adopted.  It  originated  with  the  circumstance  that  certain  observations 
regarding  the  process  of  interpretation,  which  were  accurate  but  stood 
all  by  themselves,  would  not  fit  into  any  compartment  of  the  scheme  set 
out  above,  partly  because  the  scheme  is  meaningless,  partly  because  it  is 
not  practicable.  So  they  made  a  new  category  for  these  observations, 
because  they  did  not  know  what  else  to  do  with  them,  and  gave  this 
category  the  name  "development."  However,  it  is  very  hard  to  see 
why  it  is  not  interpretation  (let  us  say  extensive  interpretation),  when 
a  lawyer  holds  that  a  party  who  under  a  statute  has  the  right  of  taking 
water  from  a  certain  spring  also  has  the  right  of  access  to  the  spring 
(a  case  of  inference  regarding  the  means  from  the  purpose).  It  is  hard  to 
see  where  there  is  a  difference  in  principle  between  this  and  ordinary  inter- 
pretation. 


§8]  THE  SCHEME  CRITICIZED  313 

carried  out.  A  mere  "ideological"  subdivision,  under 
which  it  remains  doubtful  whether  a  thing  falls  under  one 
class  or  the  other,  is  a  metaphysical  monstrosity  and 
should  be  banished  from  sciences  claiming  to  be  practical 
and  exact. 

Even  to  this  simple  requirement  the  schematic  sub- 
division of  the  results  of  juridical  thinking  into  seven 
classes,  as  set  out  in  the  preceding  section,  does  not  alto- 
gether conform.  Let  us  try  to  measure  the  actual  world 
by  this  scheme  of  seven  classes. 

It  is  striking  to  find  that  the  very  textbooks  in  which 
it  is  claimed  that  the  various  classes,  such  as  interpreta- 
tion by  analogy  and  "interpretatio  extensiva,"  are 
"strictly  distinct"  or  "cannot  be  confounded,"  are 
contending  among  themselves  as  to  which  class  the 
illustrations  selected  by  them  belong.  For  instance, 
Savigny40  offers  as  an  illustration  of  "interpretatio  ex- 
tensiva" the  case  where  a  statute  requires  witnesses  in 
order  to  make  some  transaction  valid,  but  does  not 
name  their  number.  Unger41  and  Thol42  severally  argue 
otherwise  and  hold  that  the  number  of  witnesses  necessary 
can  in  this  case  be  discovered  scientifically  in  no  way  but 
by  supplementing  the  legislative  will,  i.e.  by  analogy. 
The  word  "father"  in  section  150  of  the  Austrian  Civil 
Code43  is  understood  by  Pfaff-Krainz 44  to  include  the 
mother,  and  this  act  of  thinking  he  describes  as  an 

40  "System  des  heutigen  romischen  Rechts";  Wdchter  is  of  the  same 
mind. 

«  "System,"  §  10,  note  31. 

<2  "Einleitung  in  das  deutsche  Privatrecht." 

*3  The  section  reads:  "Where  the  usufruct  is  granted  to  the  father  by 
the  party  from  whom  the  child  derives  his  estate,  the  rents  and  profits 
remain  liable  for  the  support  of  the  child  in  accordance  with  his  station 
in  life  and  cannot  be  taken  in  execution  by  the  creditors  of  the  father  to 
the  detriment  of  such  support  of  the  child."  —  The  Supreme  Court 
decisions  of  January  28,  1884  (GU  9853)  and  March  7,  1865  (GU 
2132)  adopt  the  doctrine  of  Pfaff-Krainz. 

<4  "System  des  Privatrechts,"  §  13,  note  21. 


314        WURZEL:  JURIDICAL  THINKING    [CH.X 

instance  of  extensive  interpretation.  Not  a  few  minds 
would  object  to  that  and  call  this  a  case  of  the  purest 
analogy. 

To  appreciate  the  full  significance  of  such  controver- 
sies one  must  not  forget  that  the  illustrations  selected 
are  naturally  typical  ones,  that  is,  cases  which  exhibit 
the  characteristics  in  question  with  particular  clearness. 
Now,  if  it  is  possible  to  doubt  even  such  examples,  it 
must  appear  that  the  grounds  on  which  the  subdivisions 
are  made  are  but  specious  ones.  This  is  also  brought 
out  by  Pfaff  and  Hoffmann,  when  in  their  Commen- 
taries on  the  C'vil  Code45  they  speak  of  the  point 
of  indifference  between  broad  interpretation  and  mere 
analogy;  in  fact  many  defects  of  the  traditional  doctrine 
of  interpretation  are  shown  up  by  these  authors. 

Nevertheless  it  must  be  admitted  that  on  the  whole 
a  line  may  really  be  drawn  between  those  cases  where  the 
result  of  legal  thinking  is  contained  in  the  meaning  of  the 
text,  and  on  the  other  hand  those  where  that  is  not  the 
case,46  and  that  the  traditional  division  into  seven  classes 
may  be  carried  out  in  so  far  as  it  agrees  with  the  above 
division  into  two  groups.  In  this  I  am  anticipating 
what  I  intend  to  treat  more  fully  in  the  next  section. 

Yet  even  if  one  may,  on  the  whole,  carry  out  the 
subdivision  into  seven  classes  that  does  not  prove  that  it 
is  justifiable.  It  would  be  quite  possible  to  classify  all 
animals  according  to  color,  or  all  plants  according  to 
size,  but  nobody  would  think  of  such  a  thing.  Every 
subdivision  must  be  not  only  feasible  but  also,  as  the 
saying  goes,  productive;  otherwise  it  is  a  meaningless 
cutting-up  of  the  subject.  To  be  productive  means  that 
it  is  possible  to  connect  particular  ideas  of  importance 

"Ad  §§6,7. 

46  Or,  to  use  the  accepted  terminology,  cases  of  "interpretatio  lata," 
either  "declarativa"  or  "stricta." 


§8]  THE  SCHEME  CRITICIZED  315 

for  the  purpose  in  view  with  each  particular  class. 
Speaking  juridically,  each  subdivision  must  be  subject 
to  a  particular  rule. 

As  a  matter  of  fact,  attempts  used  to  be  made  to  estab- 
lish rules  of  this  sort  for  those  cases  where  a  narrow  inter- 
pretation was  to  be  proper,  and  those  in  which  words 
were  to  be  taken  in  their  broadest  or  their  narrowest 
meaning.  For  instance:  amendatory  statutes  are  to  be 
strictly  construed 47;  grants  in  favor  of  a  particular  person 
must  be  strictly  construed  where,  in  a  concrete  case, 
they  act  unfavorably  towards  him48;  special  privileges 
according  to  some  are  to  be  liberally  and  according  to 
others  strictly  construed 49 ;  declarations  made  before  an 
officer  are  to  be  more  liberally  interpreted  than  those 
made  in  private 50 ;  particular  rules  derogatory  of  general 
ones  must  not  be  construed  broadly  nor  extended  by 
analogy.  With  the  single  exception  of  the  rule  that  a 
particular  rule  shall  not  be  extended  by  analogy,81  one 
may  well  say  that  all  such  maxims  lack  any  vigorous, 
illuminating  power  of  convincing.  They  are  still  carried 
along  in  the  introductory  chapters  of  textbooks,  only 
to  be  disregarded  later  on.  Whenever  they  are  appealed 
to  in  practice,  they  are  merely  offered  as  ostensible 
reasons,  while  consciously  or  unconsciously  the  true 
reasons  of  the  person  using  them  are  entirely  different. 

47  "Correctoriae  leges  sunt  stricte  interpretandae." 

«  Codex  de  legibus,  1,  14:  "Quod  favore  quorundam  constitutum  est, 
quibusdam  casibusad  laesionem  eorum  nolumus  inventum  videri."Pfaff- 
Hoffmann  still  acknowledge  this  rule. 

49  "Beneficium  imperatoris,  quod  a  divino  scilicet  ejus  indulgentia 
proficiscitur,  quam  plenissime  interpretari  debemus."  (Corpus  juris, 
Tib.  de  auctoritate  etc.  1,4.)  Exactly  the  opposite  in  Codex  Theresianus, 

v,  90:  " It  is  to  be  the  general  rule  that  no  privilege  is  to 

be  construed  broader  or  more  extensively  than  the  plain  text  of  the  in- 
strument granting  it,  but  is  to  be  most  strictly  interpreted." 

*o  Avenarius,  " Inter pretationum  libri  v,"  book  2,  chap.  30:  "In 
judiciis  latior  sit  interpretatio  quam  in  contractibus." 

*i  "Not  a  productive  principle,"  says  Jhering,  "Geist  des  romischen 
Rechts,"  sect.  4,  note  18. 


316        WURZEL:  JURIDICAL  THINKING    [CH.X 

As  a  matter  of  fact  they  are  falling  more  and  more  into 
desuetude. 

These  detailed  distinctions  based  on  the  relation  be- 
tween text  and  sense  have  sometimes  been  used  in  legis- 
lation as  well  as  by  legal  science,  especially  often  by  way 
of  prohibiting  a  liberal  or  a  strict  interpretation  in  par- 
ticular connections.52  These  prohibitions  have  proven 
impracticable  and  difficult  of  enforcement,  and  are  now 
generally  abandoned.53 

§  9.  The  Methods  of  Interpretation  Classified  in  Accord- 
ance with  the  Prevalent  Theory.  The  classification  treated 
in  the  preceding  sections  is  a  subdivision  of  the  accom- 
plished results  of  juridical  thinking,  with  an  eye  especially 
on  the  relation  of  text  and  sense.  It  is  a  classification 
made  from  the  standpoint  of  the  systematizing  theorist. 
If  we  start  from  the  standpoint  of  the  practical  lawyer 
who  is  not  dealing  with  finished  results  in  the  shape  of 
decisions  already  rendered  but  is  looking  for  the  right 
way  of  deciding  his  cases,  we  shall  be  more  interested 
in  a  classification  of  methods  than  results.  Then  we  shall 
discover  the  customary  subdivision  into  grammatical 
and  logical  methods  of  interpretation.  The  former 
attempts  to  attain  its  object  by  a  consideration  of  the 
language  or  words  of  the  text ;  the  latter  employs  differ- 
ent means.  The  idea  underlying  this  classification  of 
methods  is  the  same  as  in  the  above  classification  of 
results.  There  are  here  two  equations  representing  in 
different  forms  the  same  function  and  therefore  neces- 

w  E.g.,  Codex  Theresianus,  v.  81,  line  2:  "Nobody  is  permitted  to 
extend  or  narrow  the  application  of  a  statute  on  pretext  of  a  difference 
between  the  text  and  meaning."  There  is  a  trace  of  this  attempt  in 
OBGB,  section  771,  where  we  read:  "within  the  letter  and  the  meaning 
of  the  statute." 

63  In  penal  law  the  prohibition  of  analogies  is  still  in  force,  as  regards 
the  construction  of  criminality  or  penalties  out  of  states  of  fact.  The 
same  effect,  however,  is  often  obtained  by  excessive  projection.  For  in- 
stance when  the  usury  laws  had  been  repealed  [in  Austria],  facts  form- 
erly constituting  usury  were  treated  as  frauds. 


§9]        METHODS  OF  INTERPRETATION         317 

sarily  in  strictest  dependence  on  each  other.  The  more 
independently,  pregnantly,  decisively  the  grammatical 
method  of  interpretation  is  contrasted  with  the  logical 
method,  the  more  justified  shall  we  be  to  distinguish 
results  contained  within  the  literal  meaning  of  the  text 
from  those  without.  The  best  test  of  a  proper  classifica- 
tion is  precisely  this:  that  the  various  classes  established 
are  genetically  distinct,  and  that  they  have  a  difference 
of  origin.  And  precisely  because  genetically  a  classifica- 
tion according  to  the  meaning  of  the  text  can  produce 
but  two  subdivisions  I  cannot  admit  that  the  scheme  of 
seven  classes  treated  of  in  the  preceding  section  is  in 
reality  anything  more  than  a  division  into  two  classes. 
Now,  if  we  consider  the  division  of  interpretation  into 
grammatical  and  logical  interpretation  more  closely, 
we  shall  discover  that  logically  this  classification  is  built 
on  the  importance  of  the  linguistic  factor,  but  goes  no 
farther.  This  is  just  what  is  meant  by  speaking  of 
"grammatical"  interpretation;  but  the  other  class  has 
really  no  significance  at  all.  It  is  put  down  merely  to 
make  the  scheme  complete,  is  merely  the  opposite  of  the 
first  class,  but  has  no  positive  value  at  all.  For  it  is 
certainly  no  positive  and  valuable  contribution  to 
knowledge,  no  characteristic  of  some  specific  method, 
to  assert  that  we  must  never  lose  sight  of  logic,  and  espe- 
cially not  while  we  are  conducting  a  scientific  inquiry. 
Grammatical  interpretation  likewise  needs  to  be  logical. 
It  is  generally  admitted  that  this  second  class  is  vague 
and  meaningless,  but  sometimes  the  attempt  is  made 
to  represent  the  trouble  as  one  of  terminology  merely. 
The  expression  "logical"  interpretation  is  too  vague,  it  is 
said.  Nobody,  however,  has  yet  found  a  better  term. 
We  might  as  well  admit  that  it  is  not  a  question  of  finding 
a  fitting  name  for  a  definite  conception,  but  the  second 
class  simply  does  not  represent  a  definite  conception. 


318        WURZEL:   JURIDICAL  THINKING    [CH.X 

That  is  why  one  has  to  resort  to  such  all-embracing  terms 
as  "logical,"  or  sometimes  "philosophical,"  or,  according 
to  Thol,  even  "juridical." 

Savigny  was  the  first  to  make  an  attempt  at  substitut- 
ing something  definite  for  the  vagueness  of  these  general 
expressions.54  He  brought  to  emphasis,  by  the  side  of 
the  linguistic  element,  the  systematic  and  the  historical 
factors.  Thus  he  obtains  the  grammatical,  historical, 
and  systematic  methods  of  interpretation.  Recognizing, 
however,  that  there  are  still  other  means  of  interpreting, 
he  holds  the  notion  of  "logical"  interpretation  in  reserve 
as  a  fourth  category.  This  quadruple  classification  clearly 
enough  recognizes  three  important  factors  in  interpreta- 
tion :  the  linguistic  element ;  the  tendency  to  reduce  all 
legal  rules  to  a  single,  unified,  and  self-consistent  will ; 
and  finally  the  element  of  conservatism.55  Savigny's 
way  of  expounding  the  subject  has  become  a  permanent 
part  of  the  theory  of  interpretation,  although  his  most 
eminent  pupils  have  rejected  his  classification.  It  is 
characteristic  of  the  scholasticism  still  prevalent  in 
jurisprudence  that  they  did  so,  by  no  means  because  they 
claimed  it  to  be  erroneous  but  because  it  was  not  exhaus- 
tive.56 They  said  that  there  were  still  other  factors  in 
interpretation  —  in  other  words,  his  classification  was 
rejected  by  them  because  it  offended  their  sense  of 
symmetry.  Is  it  likely  that  in  the  natural  sciences  any- 
body would  reject  a  new  truth  merely  because  it 
did  not  completely  exhaust  the  subject? 

»4  "System  des  heutigen  romischen  Rechts,"  vol.  i,  pp.  212  seq. 

«  Savigny  called  this  the  historical  method,  and  while  he  emphasized 
it  strongly,  he  defined  it  too  narrowly.  Fixing  his  eyes,  as  lawyers  are 
apt  to  do,  on  the  regulative  feature,  he  defines  the  historical  element  in 
interpretation  exclusively  as  regard  for  the  condition  of  the  legal  rules 
referring  to  the  point  in  question  at  the  time  when  the  statute  to  be 
interpreted  was  adopted.  However,  there  are  still  other  phenomena  due 
to  the  conservative  factor.  Comp.  chapter  iv,  last  section,  infra. 

M  E.g.,  Thol,  "Einleitung  in  das  deutsche  Privatrecht,"  §  59,  note  2. 


§9]  METHODS  CLASSIFIED  319 

However,  Savigny  himself  did  not  entirely  realize  the 
value  of  his  classification.  For  instance,  in  his  discus- 
sion57 of  the  means  of  construing  defective  statutes, 
he  abandons  his  own  division,  and  proposes  the  following 
list: 

1.  Intrinsic  consistency  of  legislation. 

2.  Connection  of  the  statute  with  its  reason. 

3.  Intrinsic  (?)  value  of  the  meaning  arrived  at  by  construction. 

The  first  of  these  means  is  identical  with  the  systematic 
factor.  The  third  and  last  lacks  all  scientific  definiteness. 
About  the  second  we  must  say  a  few  words. 

§  10.  Reason  ("ratio")  of  the  Law.  The  reason  or 
"ratio"  of  the  law  is  the  keystone  of  the  theory  of  inter- 
pretation as  elaborated  for  private  law.  The  distinction 
drawn  between  two  methods  of  interpretation  and  the 
differences  between  the  results  obtained  accordingly 
naturally  provoked  the  question  what  justification  there 
was  for  either  method  and  according  to  what  rule  one  or 
the  other  was  to  be  adopted.  Obviously,  in  favor  of  the 
grammatical  method  there  is  the  text  itself.  But  how 
can  one  justify  a  deviation  from  the  sense  obtained 
according  to  the  ordinary  rules  of  the  language?  Still 
more,  by  what  right  are  cases  not  provided  for  by  the 
text  decided  by  analogy?  The  customary  answer  to 
these  questions  reads,  the  justification  lies  in  the  "ratio" 
of  the  law;  and  this  conception  has  to  be  worked  out 
elaborately  in  order  to  cover  the  question  of  analogy. 
The  conception  of  "ratio  legis"  is  a  very  comprehensive 
one,  and  the  practice  of  construing  by  analogy  is  founded 
on  but  a  part  of  it.  In  theory,  it  is  customary  to  set 
certain  limits  to  the  applicability  of  this  doctrine  of 
"ratio  legis,"  but  in  practice  lawyers  recognize  almost 
no  bounds  to  its  employment  in  justifying  the  applica- 
tion of  the  "logical"  method  of  interpretation.  Every 

"  Op.  cit.,  §  35. 


320        WURZEL:  JURIDICAL  THINKING    [Cn.X 

time  anybody  wishes  to  deviate  from  the  letter  of  the 
statute  he  calls  in  the  "ratio  legis"  to  justify  him.  The 
conception  of  "ratio  legis"  may  therefore  be  considered  as 
correlative  with  that  of  "logical"  interpretation,58 
subject  however  to  certain  reservations.  The  notion  of 
"ratio  legis"  is  consequently  quite  as  vague  and  indefinite 
as  that  of  "logical  interpretation."  .  .  .  The  tradi- 
tional theory  of  legislation  itself  distinguishes  several 
different  meanings  attaching  to  the  term  "reason  of  the 
law."  Especially,  a  distinction  is  drawn  between  the 
external  circumstances  causing  the  making  of  the  rule 
("occasio  legis")  —  a  distinction  borrowed  from  the 
historical  sciences,  —  and  a  more  profound  reason  for  its 
existence,  which  one  may  call  the  legislative  and  political 
reason,  or  the  "ratio  legis"  in  the  narrow  sense.  As  the 
distinction  between  occasion  and  cause  is  used  in  the 
historical  sciences,  which  aim  at  describing  empirical 
reality,59  it  is  exhaustive,  covering  the  whole  series  of 
happenings  constituting  the  cause  of  a  given  event. 
All  such  happenings  are  either  cause  or  occasion,  there 
is  no  third  possibility.  In  fact,  as  long  as  one  adheres 
strictly  to  actual  events,  no  third  possibility  can  well  be 
conceived.  The  teleological  character  of  legal  science, 
notwithstanding  the  claims  made  that  it  deals  merely  with 
things  as  they  positively  are,  appears  clearly  from  the 
fact  that  lawyers  recognize  a  third  species  of  "ratio 
legis,"  and  moreover  lay  especial  emphasis  on  this  third 
species  while  the  other  two  are  considered  of  secondary 
importance.  It  is  this  third  species  that  must  explain  and 
support  the  use  of  analogy  for  construction.  There  is  a 
consensus  of  opinion  that  the  occasion  of  the  law,  as  well 
as  the  political  and  legislative  reason  for  it,  are  both  use- 

48  The  older  theorists  so  define  it.  For  instance,  Dr.  Eckhart  in  "Her- 
meneutica  juris"  (sect.  33)  says:  "Dialectica  [i.e.,  logical]  interpretatio 
in  eruenda  legis  ratione  versatur." 

*  It  is  different  in  the  philosophy  of  history. 


§10]  REASON  OF  THE  LAW  321 

less  for  the  purpose  of  justifying  construction  by  analogy.60 
The  third  species,  which  we  call  particularly  "ratio  legis," 
is  not  contained  in  the  body  of  rules  itself  but  must  first  be 
discovered  by  the  lawyer.  It  may  therefore  well  be  called 
a  higher  rule,  or  a  " principium  generate, ' '  a  higher  principle 
of  which  one  or  more  of  the  existing  rules  of  law  are  merely 
the  results,  or  the  logically  deducible  consequences. 

Teachers  of  law  assure  us  that  it  is  possible  to  dis- 
cover, by  means  of  the  logical  operations  of  induction 
and  abstraction,  out  of  the  legal  rules  actually  before  us, 
this  original  principle  with  scientific  exactitude,  and 
then,  by  the  equally  logical  method  of  deduction,  not 
only  to  revert  to  the  legal  rules  from  which  we  started  but 
also  to  discover  a  number  of  additional  rules  of  equal 
value.61  This  process  is  said  at  no  point  to  lose  its  strictly 
logical  and  exactly  scientific  character ;  consequently  the 
new  rules  so  discovered  are  represented  as  positive  law, 
that  is,  law  intended  by  the  legislator,  quite  as  much 
as  the  acknowledged  rules  from  which  we  started  origin- 
ally. In  this  way,  it  is  further  asserted,  we  are  enabled 
to  avail  ourselves  of  the  newly  found  rules  to  supply 
law  for  the  unprovided  cases,  without  ever  deviating 
from  the  rules  of  positive  law,  and  thus  the  use  of 
analogy  is  explained.62  To  be  sure,  one  is  apt  to  ask  at 

60  Unger,  "System,"  section  10;  similarly  Thol,  "Einleitung  in  das 
Privatrecht." 

81  Comp.  Thol,  "Einleitung,"  section  55.  According  to  him,  it  is  the 
function  of  jurisprudence  to  find  those  legal  rules  which  are  not  plainh- 
expressed.  He  believes  that  the  ruling  principle  from  which  the  rule 
follows  is  found  by  abstraction,  and  conversely,  this  principle  may,  by- 
deduction  or  the  drawing  of  consequences,  be  carried  out  into  its  details. 
Thus  jurisprudence  may  determine  in  advance  what  the  judgment  must 
be  when  a  corresponding  case  comes  before  the  court.  Next  (sect.  64) 
he  defines  analogy  as  the  discovery  and  application  of  a  principle.  Con- 
sequently he  holds  that  construction  by  analogy  is  a  logical  deduction 
from  the  principle  underlying  a  rule.  It  is  purely  a  relation  of  premise 
and  conclusion. 

62  Unger  ("System")  is  so  confident  that  this  method  is  reliable  as  to 
say  outright,  in  speaking  of  section  7,  OBGB,  and  the  law  of  nature: 


322        WURZEL:  JURIDICAL  THINKING    [Cn.X 

once:  What  then  is  the  difference  between  analogy  and 
mere  broad  construction,  a  difference  on  which  so  much 
stress  is  commonly  laid,  if  it  is  true  that  analogy  also 
serves  merely  to  show  what  the  legislator  really  meant, 
while  it  is  admitted  that  the  sense  obtained  by  broad 
construction  is  not  really  contained  in  the  text?  We 
have  already  called  attention  to  the  confusion  existing 
in  this  respect,  and  to  the  admission  of  it  made  by  Pfaff- 
Hoffmann,  after  a  thorough  consideration  of  the  subject. 
These  writers  fail,  however,  to  draw  therefrom  the  proper 
conclusions  against  the  doctrine  of  a  "ratio  juris"  and  the 
customary  theory  of  interpretation.63  For  in  their  treat- 
ment of  the  functions  of  interpretation  they  still  adhere 
to  the  methods  of  scholastic  logic64;  but  where  you 
employ  that  method,  the  doctrine  of  "ratio  juris"  is  an 
indispensable  makeshift  for  the  defense  of  the  use  of 
analogy.  This  will  appear  plainly  by  putting  the  three 
following  principal  propositions  side  by  side: 

1.  All  law  is  positive,  i.e.  is  based  on   the  will  of  the 
legislator.    Legal  science  inquires  only  into  positive  law. 

2.  There  are  cases  unprovided  by  positive  law,  that 
is,  by  the  will  of  the  legislator. 

"There  never  can  be  a  case  requiring  recurrence  to  the  law  of  nature. 
For  analogy  is  sufficient  to  solve  every  question  in  accordance  with  the 
spirit  of  the  existing  law."  All  the  more  surprising  it  is  to  find  him  assert, 
in  the  very  next  chapter  (page  159)  that  for  questions  of  international 
private  law  a  reference  to  the  Civil  Code  is  not  enough.  "There  are  a 
number  of  most  important  questions,"  he  says,  "the  solution  of  which  is 
not  even  suggested  in  the  Code.  .  .  .  We  must  therefore  be  per- 
mitted to  solve  such  questions  according  to  the  methods  recognized  by 
the  theory  of  international  law."  Notwithstanding  his  attempts  at 
explanation,  however,  he  fails  to  furnish  the  criteria  of  the  correctness 
of  his  explanations. 

KPfaff  and  Hoffmann  themselves  define  "ratio  juris"  as  "the  legal 
rule  purified  of  the  accidental  qualities  due  to  its  historical  origin." 

•<  Discussion  of  this  point  will  be  reserved  (see  part  iii  inf.)  This  sort 
of  logic  thinks  of  concepts  as  if  they  were  firmly  circumscribed  bodies  in 
space,  like  geometrical  figures,  and  therefrom  obtains  the  idea  of  empty 
places  in  the  law  that  have  to  be  filled  up  by  extraordinary  means. 


§10]  REASON  OF  THE  LAW  323 

3.  Where  there  are  unprovided  cases,  the  result  is  not 
the  absence  of  law  regarding  them,  but  instead  there 
arises  a  supplemental  law  which  is  also  positive/5 

In  the  present  place,  I  shall  simply  point  out  this  un- 
solved contradiction,  and  in  order  not  to  anticipate 
matters  to  be  discussed  later,  I  shall  not  now  attack  the 
correctness  of  the  assumption  that  the  "ratio  juris" 
serves  the  purpose  of  giving  a  strictly  logical  justification 
for  the  use  of  analogy.  All  I  shall  do  now  is  to  cite  an 
example  of  the  opposite.  I  select  for  that  purpose  the 
very  case  which  Unger 66  uses  to  demonstrate  the  func- 
tion of  the  "ratio  juris." 

A  section  of  the  Code  67  deals  with  the  duty  of  a  bailee 
to  return  the  thing  bailed,  and  ends  with  the  statement 
that  "neither  an  offer  to  compensate  nor  a  claim  of  former 
ownership  will  excuse  from  the  duty  to  return."  Now 
Unger  asserts  that  the  principle,  or  "ratio  juris"  on 
which  this  provision  is  based,  is  the  requirement  of 
good  faith  that  contracts  must  be  performed,  and  that 
"quod  bonae  fidei  est  ad  perndiam  non  est  trahendum." 
Consequently  the  last  clause  of  the  provision  ought 
to  be  applied  by  analogy  in  all  cases  where  there  is  a  duty 
of  returning  specific  things,  even  if  there  was  no  express 
bailment. 

The  Austrian  Civil  Code,  however,  expressly  recognizes 
the  legal  institution  of  compensation,  and  this  also  has 

•*  Menger,  in  his  theory  of  interpretation,  which  is  based  on  independ- 
ent thought  ("System  des  osterreichischen  Zivilprozesses,"  sect.  8) 
attempts  to  overcome  the  contradiction  by  dividing  interpretation  into 
historical  (philological)  and  practical  forms.  Only  the  former  he  admits 
as  inquiry  into  what  the  legislator  said  and  meant  to  say  by  his  provision, 
while  the  second  form  goes  beyond  that  and  tries  to  find  what  the  legis- 
lator would  have  said  if  he  had  intended  to  make  a  rule  for  the  case  under 
discussion.  While  the  distinction  between  practical  and  historical  inter- 
pretation is  unquestionably  true,  it  is  also  indubitable  that  one  gets 
beyond  positive  law  the  moment  he  asks  and  answers  the  last-named 
question. 

66  "System,"   §  10,  note  21. 

"  Austrian  Civil  Code  (OBGB)  §  1109. 


324         WURZEL:   JURIDICAL  THINKING    [CH.X 

its  "higher  principle"  or  "ratio  juris."  This  is  well 
known  and  runs:  "Dolo  facit  qui  petit  quod  redditurus 
est."  Now  why  could  one  not  apply,  with  the  same  logi- 
cal right,  instead  of  the  "ratio"  of  §1109,  the  "ratio" 
of  the  legal  institution  of  compensation  in  the  unpro- 
vided cases  which  Unger  has  in  mind?  Then  the  decision 
would  be  precisely  the  opposite  way,  but  it  would  have 
been  arrived  at  by  the  same  form  of  reasoning  which 
Unger  describes.  I  do  by  no  means  deny  that  Unger's 
decision  is  correct,  but  I  do  deny  that  he  is  correct  when 
he  pretends  to  logical  consistency.  We  can  learn  from 
this  example  that  the  result  was  not  obtained  by  the  aid 
of  the  conception  of  "ratio  juris,"  which  is  cited  in 
support  of  it. 

Here  as  elsewhere,  the  "ratio  juris"  is  nothing  but  a 
form  assumed  by  the  process  of  juridical  thinking  to 
furnish  an  apparent  reason,  while  in  reality  it  was  led 
by  entirely  different  motives  and  impulses.  "Ratio 
juris"  is  not  at  all  the  justification  for  the  application 
of  a  rule  by  analogy,  but  merely  a  convenient  instrument 
for  giving  a  sophistical  reason,  convenient  to  handle  on 
account  of  its  vagueness  and  elasticity;  an  instrument 
the  use  of  which  often  saves  one  from  digging  out  the 
true  reasons  of  one's  conviction  as  to  what  the  law  is 
regarding  this  or  the  other  state  of  facts. 

In  addition  to  this  explanation  of  analogy  by  means  of 
the  "ratio  juris,"  which  might  be  called  the  official  one, 
occasionally  we  find  other  attempts  at  such  explanation. 
For  instance,  one  may  hear  of  the  organic  nature  of  law, 
or  about  an  intrinsic  consistency  which  is  not  necessarily 
logical  but  organic.68  For  the  law  is  said  to  be  an  organic 
compound  of  members  connected  with  each  other  and 
possessing  a  power  of  growth  by  which  it  is  capable  of 
developing  into  a  complete  whole  harmonious  in  itself; 

**Savigny,  "System  des  heutigen  romischen  Rechts,"  section  46. 


§10]  REASON  OF  THE  LAW  325 

therefore  it  must  be  perfected  out  of  its  own  intrinsic 
nature/9 

Metaphorical  explanations  of  this  sort,  addressed  as 
they  are  merely  to  the  imagination,  must  fail  to  satisfy 
anybody  who  recognizes  that  the  so-called  organic  or 
biological  method  in  the  social  sciences,  based  on  the 
comparison  of  law,  language,  society,  and  things  similar 
to  animal  or  vegetable  organisms,  is  nothing  more  than 
a  series  of  comparisons  which  may  be  very  useful  for  a 
vivid  description  but  by  themselves  explain  nothing  in 
particular.  It  is  a  method  of  description  rather  than  a 
method  of  investigation. 

The  faults  of  the  customary  theory  of  interpretation 
are  shown  in  a  particularly  glaring  light  by  this  incapacity 
of  explaining  the  problem  of  analogy  and  the  inconsisten- 
cies inherent  in  the  attempts  at  explanation.  Nor  are 
such  faults  absent  in  other  parts  of  the  field,  where  they 
assume  different  forms.  For  they  are  the  result  of  general 
causes.  The  main  reason,  as  stated  above,  must  be  sought 
in  the  insufficiency  off  the  antiquated  logical  means  of 
which  the  theory  makes  use.  If  we  may  also  use  meta- 
phorical language,  this  theory  is  incapable  of  embracing 
practical  life,  which  is  surrounded  by  an  atmosphere 
of  freedom  and  carried  on  in  the  full  possession  of  in- 
tellectual liberty.  The  theory  of  interpretation  is  the 
principal  attempt  at  a  conscious  understanding  of  the 
nature  of  juridical  thinking,  but  it  is  wrecked  and  dis- 
credited when  it  runs  upon  the  rock  of  being  inconsistent 
with  real  life.  No  branch  of  juridical  science  is  so  sunk 
into  oblivion  as  legal  hermeneutics,  no  rule  meets  with  so 
much  doubt  and  distrust  as  a  rule  of  interpretation. 

§  11.  Need  for  a  Theory  of  Juridical  Thinking.  It 
reads  like  an  expression  of  this  general  distrust  and  doubt 
when  Pfaff  and  Hoffmann  put  at  the  head  of  their 

•»  Unger,  "System,"  section  10. 


326         WURZEL:  JURIDICAL  THINKING    [CH.X 

chapter  on  interpretation  (which  is  exceedingly  thorough 
and  throws  much  brilliant  light  on  the  subject70)  the 
proposition  (which  had  been  pronounced  before  upon 
occasion71)  that  "the  interpretation  of  the  Law  is  an 
art,  not  a  science;  it  implies  not  knowledge  but  skill; 
it  cannot  be  learned."  As  they  proceed,  practically 
all  rules  of  interpretation  are  as  a  matter  of  fact  aban- 
doned by  Pfaff  and  Hoffmann. 

Such  a  proposition,  however,  means  that  jurisprudence, 
the  science  which  above  all  others  deals  with  phenomena 
proceeding  according  to  law,  is  to  give  up  the  attempt  of 
understanding  the  laws  to  which  itself  is  subject.  More- 
over, if  this  proposition  is  to  be  accepted  as  it  stands,  it 
means  that  jurisprudence  must  abandon  all  claims  to 
being  a  science,  a  consequence  which  those  who  maintain 
the  proposition  probably  failed  to  foresee. 

Try  to  realize  what  is  meant  by  interpretation: 
the  mental  reception  of  the  text,  the  reconstruction 
of  the  thought  concealed  behind  the  words,  briefly  the 
entire  mental  activity  directed  upon  the  words  strung 
together  to  make  the  text  of  a  statute,  an  activity 
without  which  the  statute  would  be  like  a  meaningless 
jumble  of  words,  as  a  book  by  Kant  would  be  for  a  child. 
This  considerable  expenditure  of  mental  labor,  directed 
to  finding  an  orderly  array  of  ideas  in  what  otherwise 
would  be  a  chaos  of  words  without  sense,  is  represented 
as  being  subject  to  no  rule  or  restraint,  like  the  fancy 
of  a  poet.  (The  rules  according  to  which  even  poetry 
must  proceed  were  presumably  not  in  the  minds  of  Pfaff 
and  Hoffmann  when  they  formulated  their  proposition.) 
This  mental  activity  is  represented  as  purely  intuitive, 
taking  shape  as  it  listeth.  The  lawyer's  only  guide  is 

'»  "Kommentar  zum  Allgemeinen  Biirgerlichen  Gesetzbuch,"  sections 
6  and  7. 

n  Savigny,  "System,"  section  32. 


§11]  AN  ART  OR  A  SCIENCE?  327 

tact,  as  imagination  is  that  of  the  artist.  This  tact  itself, 
however,  is  not  susceptible  of  explanation,  its  results 
cannot  be  controlled  by  an  objective  standard.  They 
can  be  foreseen  no  more  than  a  future  poem  about  a  given 
subject-matter.  If  that  is  to  be  the  meaning  of  the 
proposition,  what  becomes  of  the  claim  of  jurisprudence 
to  be  a  method  of  finding  truth,  of  being  a  science? 

Yet,  how  could  it  come  about  that  after  all  there  is 
such  a  science  as  jurisprudence,  that  this  science  values 
the  results  of  its  interpretations,  its  decisions,  opinions, 
and  doctrines,  according  as  they  appear  to  be  correct, 
in  other  words  measure  up  to  the  standard  of  truth; 
and  why  is  it  that  notwithstanding  numerous  differences 
in  detail  the  practice  of  the  courts  and  the  results  of 
scholarly  work  do  on  the  whole  lead  in  a  single,  definite 
direction?  How  could  it  be,  moreover,  that  there  is  a 
possibility  of  legislation? 

If  as  a  matter  of  fact  all  interpretation  were  nothing 
but  a  sort  of  artistic  function,  then  nobody  could  ever 
foresee  how  any  law  would  be  understood  or  what  effect 
it  would  have.  Legislation  would  be  a  blind  rushing  to 
and  fro.  Regarding  particular  details,  that  may  really 
be  so,  yet  the  very  fact  that  legislative  activity  exists 
and  is  able  to  produce  effects  proves  that  one  can  calcu- 
late in  advance  how  laws  will  be  understood  at  least 
regarding  their  primary  and  most  general  meaning. 
There  can  be  no  doubt  about  it — a  proposition  that  in- 
terpretation is  exclusively  an  art  goes  far  beyond  the 
mark.  Such  a  view  is  to  be  explained  merely  as  a  reaction 
against  the  excess  of  the  rationalistic  method  formerly 
in  vogue,  according  to  which  rules  of  interpretation 
were  adopted  that  never  went  below  the  surface  of  legal 
phenomena. 

Interpretation,  and  juridical  thinking  in  general,  are 
subject,  like  everything  that  occurs,  to  certain  laws. 


328        WURZEL:  JURIDICAL  THINKING    [Cn.X 

They  possess  their  own  regularities  which  at  the  same 
time  are  characteristics.  It  is  immaterial  whether  these 
laws  are  properly  considered  as  jural  (which  has  hereto- 
fore been  the  practice)  or  natural  lawrs,  whether  they  are 
merely  logical  or  psychological  also;  and  no  more  import- 
ant is  the  question  whether  in  future  jurisprudence  itself 
will  consider  the  exploration  of  these  laws  as  part  of  its 
functions.  But  the  study  of  these  regularities  and 
characteristics  must  assuredly  maintain  a  place  among 
our  scientific  interests,  if  not  as  a  part  of  legal  science, 
then  at  all  events  as  part  of  our  knowledge  regarding 
legal  science. 

However,  the  method  of  study  must  needs  be  positivist, 
i.e.,  it  must  inquire  into  the  actual  administration  of  law 
as  shown  in  court  practice  and  elsewhere.  It  must  not 
attempt  to  lay  down  a  priori  rules,  derived  from  some 
source  of  open  or  concealed  bias,  to  which  juridical  think- 
ing is  bound  to  conform.  It  is  true  that  the  discovery 
of  such  rules,  capable  to  serve  as  standards  with  which 
to  test  the  particular  results  of  juridical  thinking,  is 
one  of  the  aims  of  the  theory  of  interpretation;  but 
that  is  the  ultimate  goal,  never  to  be  attained  completely. 
It  is  not  to  be  taken  into  consideration  until  after  suffi- 
cient data  have  been  compiled  by  positivist  labor  for 
the  knowledge  of  the  nature  of  juridical  thinking. 

III.   SCOPE  OF  JURIDICAL  THINKING,  ESPECIALLY  ITS 
RELATION  TO  INTERPRETATION 

§  12.  7/5  Limitation  in  Principle.  Because  rules  of 
law,  up  to  a  certain  point,  are  akin  to  the  natural  laws 
of  sociological  development,72  their  study  must  be  carried 
on  in  connection  with  the  study  of  the  natural  laws 
governing  human  thought  and  action.  Yet  whether 

7«  Comp.  supra,  section  6. 


§121  SCOPE  OF  INTERPRETATION  329 

there  really  are  such  laws  is  a  problem  that  has,  in  one 
form  or  the  other,  troubled  the  minds  of  men  for  thous- 
ands of  years.  If  the  attempt  to  prove  that  human 
action  is  absolutely  determined  by  the  law  of  causality 
should  ever  be  successful,  there  would  be  an  end  to  the 
conception  of  liberty,  i.e.  the  capacity  of  man,  by 
spontaneous  acts  of  will,  to  become  first  cause  of  a  new 
series  of  causally  connected  phenomena.  The  struggle 
between  these  two  conceptions  of  the  world,  liberty  and 
causality,  is  ages  old,  and  one  of  its  phases  is  formed  by 
the  well-known  contest  of  determinists  and  indetermin- 
ists  in  criminology.  Up  to  this  time  it  must  be  admitted 
that  in  this  struggle  the  idea  of  liberty  has  constantly 
lost  ground.73 

Since  the  time  when  Hegel  created  the  philosophy  of 
history,  a  number  of  sciences,  such  as  the  history  of 
civilization,  statistics,  folk-psychology,  and  especially 
sociology,  have  struggled  hard  to  introduce  the  rule  of 
law  into  our  conceptions  of  social  events.  Their  ulti- 
mate aim  is  to  establish  the  laws  to  which  the  life  of 
man  is  subject.  As  yet,  this  last  goal  is  still  at  an 
incalculable  distance.  Whenever  it  is  attempted  to  carry 
the  laws  of  material  nature  without  change  into  the 
realms  of  the  spirit,  one  has  to  be  satisfied  with  the 
palest  generalizations  and  abstractions  in  order  not  to 
contradict  the  plainest  evidence  of  real  life.74  The 
results  of  the  social  sciences  become  valuable  when  they 
adopt  special  forms  of  causality  in  mental  processes, 
by  making  use  of  notions  such  as  purpose,  motive,  pre- 
sumption, inference,  habit,  and  the  like.  It  seems  that  the 

'»  In  an  age  when  the  mythological  habit  of  thought  prevailed,  all 
natural  events,  over  which  now  causality  is  held  to  reign  supreme,  were 
considered  as  resulting  from  the  will  of  free  living  beings. 

'«  Comp.,  e.g.,  Spencer's  doctrines  regarding  the  phenomena  of  differ- 
entiation and  integration,  which  he  discovers  equally  in  cosmic,  organic, 
and  social  occurrences;  or  Schaffle's  sterile  metaphors  applying  terms  of 
organic  life  to  social  phenomena  ("Bau  und  Leben  des  Sozialen  Korpers"). 


330         WURZEL:  JURIDICAL  THINKING    [Cn.X 

study  of  sociological  laws  is  made  difficult  not  only  by 
the  infinite  complexity  of  mental  and  social  processes, 
but  also  the  very  specific  nature  of  the  laws  governing 
such  processes.75  In  the  early  days  of  scientific  law-study, 
there  could  be  no  help  from  the  other  social  sciences, 
and  yet  jurisprudence  could  not  rest  satisfied  with  vague 
generalizations  but  had  to  have  detailed  rules  which  could 
be  applied  to  the  most  specific  human  acts.  Therefore 
legal  science  was  unable  to  deduce  the  correct  rules 
scientifically  and  immediately  from  the  very  facts  them- 
selves for  which  it  was  seeking  the  governing  rules.  Yet 
it  is  certain  that  the  rules  of  law,  to  a  great  extent  at 
least,  flow  naturally  from  the  facts  to  which  they  apply, 
as  the  laws  of  motion  are  inherent  in  bodies,76  and  are 
by  no  means  a  sort,  of  leading-string  applied  to  the  facts 
from  the  outside. 

Now,  whenever  anybody  has  attempted  to  find  rules 
of  law  directly  by  a  consideration  of  the  facts,  as  was  done 
for  instance  by  the  law  of  nature  school  in  its  several 
forms,  he  has  invariably  lost  his  way  in  a  sort  of  laby- 
rinth. The  theoretical  and  legal  principles  evolved  in  this 

«  Thus  Wundt  makes  the  striking  observation  that  the  principle 
of  the  quantitative  constancy  of  matter  and  energy  has  no  application 
to  mental  occurrences.  Even  a  simple  sentence  is  more  than  the  sum  of 
the  words  composing  it.  In  such  matters  it  is  rather  the  principle  of 
growth  that  governs. 

"  I  cannot  pass  by  this  sentence  without  citing  some  authorities. 
Comp.  the  remarks  of  linger  ("System,"  §  10)  on  the  so-called  positive 
nature  of  the  subject:  "  ....  One  must  discover  and  impress  upon 
scientific  consciousness  that  the  legal  rule  which  is  implied  in  the  state  of 
facts,  has  originated  simultaneously  with  them,  and  governs  them  just 
as  certainly  as  natural  law  governs  any  specific  natural  phenomenon." 
Similarly,  Thol  ("Handelsrecht,"  section  15;  see  also  "Einleitung  in  das 
Privatrecht,"  section  57)  says:  "In  like  manner,  legal  science  deduces 
legal  rules  from  a  basis  of  facts,  the  nature  of  the  subject,  the  relations 
of  things,  the  character  of  institutions,  the  circumstances  of  the  case, 
in  other  words  the  actualities.  These  actualities  include  particularly 
volition,  purpose,  and  the  acts  of  the  parties  —  not  the  specific  volition 
(purpose  or  act)  of  individuals,  but  the  general  will  of  the  community; 
for  this  it  is  which  creates  what  constitutes  the  nature  of  the  subject." 
Similarly  Dernburg,  "Pandekten,"  section  38. 


\ 
§12]  SCOPE  OF  INTERPRETATION  331 

manner  would  not  stand  the  tests  of  real  life.  Wherever 
reality  was  inconsistent  with  the  results  of  this  sort  of 
juridical  thinking,  the  latter  was  of  course  proven  at 
fault.  In  order  to  keep  in  touch  with  real  life  juridical 
thinking  was  compelled  to  limit  itself,  I  might  almost  say 
to  mutilate  itself.  It  limited  itself,  nominally,  to  con- 
sidering the  application  of  certain  legal  propositions  al- 
ready formulated,  i.e.,  expressed  in  words.  The  act 
itself  of  discovering  and  formulating  the  proper  rule  was 
rejected  as  not  being  part  of  the  proper  function  of 
science,  or  at  least  of  legal  science.  It  was  left  to  the 
attention  of  the  people  at  large  (customary  law),  or  to 
the  organized  government.77  No  lawyer  is  shocked  by  the 
fact  that  rules  of  law  are  often  made  or  repealed  by  people 
without  any  legal  training  whatsoever,  as  for  instance 
in  representative  bodies.78  It  is  admitted  that  the  State, 
which  itself  draws  a  large  portion  of  its  power  from  the 
idea  of  law,  does  not  formulate  the  law  arbitrarily  but  de- 
rives it  from  the  actual  relations  of  power  in  society  by 
means  of  observation  and  logical  analysis.  This  field, 
however,  is  not  invaded  by  jurisprudence  but  reserved 
in  part  for  other  branches  of  science,  in  part  for  the  poli- 
tician and  the  intuitions  of  the  legislator.  The  formulated 
rule  of  law  is  furnished  to  the  lawyer  as  the  premise 
from  which  he  starts  in  the  exercise  of  his  proper  function. 
The  evolution  of  this  practice  brought  about  important 
consequences  for  the  law  and  the  study  of  law.  Law 
lost  the  character  of  a  social  phenomenon  deeply  rooted 

"  I  must  ask  that  this  statement  be  not  considered  an  historical  one- 
I  wish  to  call  attention,  not  to  sequence  in  time,  but  to  social  explanation. 
Moreover  I  wish  to  touch  on  one  feature  of  the  process  only,  to  wit 
the  insufficiency  of  j  uridical  means  of  comprehension.  The  State  has  other 
and  even  more  important  reasons  for  taking  hold  of  the  idea  of  justice 
in  order  to  add  its  psychological  power  to  its  own  commands. 

78  Laymen  are  sometimes  shocked  by  this  fact,  because  the  self-limi- 
tations of  jurisprudence  are  not  familiar  to  them.  For  this  reason  I 
emphasize  in  the  text  a  good  many  points  which  to  the  lawyer  are  self- 
evident. 


332         WURZEL:   JURIDICAL  THINKING    [Cn.X 

in  real  life.  It  became  a  mere  command.  The  State 
began  to  treat  as  law  a  lot  of  things  that  were  in  no  way 
founded  on  an  inherent  sense  of  law,  but  were  of  a  mere 
fiscal  or  administrative  nature.79  Then  jurisprudence 
had  to  descend  from  its  proud  eminence  on  which  it  was 
shown  to  stand  as  lately  as  when  Ulpianus  defined  it  to  be 
"divinarum  atque  humanarum  rerum  notitia,  justi 
atque  injusti  scientia."  It  lost  its  independence,  it 
fell  apart  into  as  many  different  species  of  jurisprudence 
as  there  are  governments  on  earth.  It  is  no  longer  sup- 
posed to  be  one  of  the  social  sciences  but  a  science  of 
obedience,  of  submission  to  commands.  The  lawyer 
has  become  a  sort  of  expert  in  the  art  of  obeying,  one 
who  knows  how  to  understand  the  faintest  shades  of 
expression  of  the  will  of  the  legislator,  and  to  obey  them. 
Now  it  will  be  our  business  to  inquire  whether  the  lawyer 
is  nothing  but  that.  (We  should  add  that  as  compensa- 
tion for  all  these  losses  juridical  thinking  obtains  thereby 
a  convenient  starting  point  and  is  carried  on  more  easily 
and  certainly  in  either  of  the  two  respects  indicated  in 
the  section  on  the  certainty  of  law.)80 

In  one  respect,  however,  we  must  at  once  correct  the 
limitation  of  the  scope  of  juridical  thinking,  as  stated 
above.  Not  everything  lying  outside  of  the  considera- 
tion of  rules  already  formulated  is  foreign  to  juridical 
thought.  The  technical  side  of  legislation,  constituting 
a  sort  of  auxiliary  science  for  the  legislator  by  casting 
the  expression  of  his  will  into  the  proper  mold  and  thus 
doing  an  important  preliminary  work  for  the  application 
of  the  rule  afterwards, —  all  this  is  properly  counted  as 
part  of  scientific  jurisprudence.  As  a  matter  of  fact, 
lawyers  are  constantly  employed  in  drawing  new  statutes. 

"  For  instance,  the  requirement  of  paying  a  certain  amount  of  duty, 
when  passing  a  customs  line,  is  law  in  precisely  the  same  sense  as  the 
rule  that  a  thing  borrowed  must  be  returned? 

80  §  5  supra. 


§12]  SCOPE  OF  INTERPRETATION"  333 

Aside  from  this  technical  phase  of  legislation,  however, 
juridical  thinking  has  no  part  in  the  derivation  of  the 
law  immediately  from  the  facts  to  be  regulated;  in 
principle,  it  limits  itself  to  the  correct  subsumption  of 
facts  under  a  law  already  formulated.  As  a  consequence, 
the  discovery  of  the  facts  also  must,  as  a  matter  of  prin- 
ciple at  least,  be  distinguished  from  juridical  thinking; 
it  is  not  considered  as  a  juridical  function  but  a  mere 
preliminary  work  not  itself  of  juridical  character.81 

According  to  notions  widely  prevailing  among  lawyers, 
the  juridical  function  in  the  strict  sense  consists  of  nothing 
but  the  obtaining  of  a  network  of  concepts  as  perfect 
and  consistent  as  possible,  out  of  the  body  of  formulated 
rules  of  law,  by  means  of  logical  operations ;  and  secondly, 
of  the  subsumption  of  the  facts  under  this  network  of 
concepts.  In  this  way,  so  it  is  said,  one  obtains  a  syl- 
logism the  major  premise  of  which  is  the  legal  rule  in 
question ;  the  minor  premise  is  whatever  may  be  stated 
about  the  facts.  The  conclusion  will  constitute  the 
decision.82  The  principal  difficulty  to  overcome  lies  in 
the  multiplicity  and  multiformity  of  the  legal  rules,  ex- 
cept in  cases  of  analogy,  where  it  is  found  in  the  insuffi- 
ciency of  the  rule.  The  way  to  overcome  these  difficul- 
ties is  to  find  the  correct  meaning  of  the  legislative  will 
which  is  at  the  bottom  of  the  formulated  rule. 


»  That  this  is  a  common  understanding  of  the  matter  appears  from 
certain  features  of  procedure,  such  as  the  attempt  to  separate  questions 
of  law  and  fact  altogether  and  leave  the  finding  of  the  fads  to  laymen. 

w  Unger,  "System,"  section  1,  note  4.  All  decisions  are  composed  of 
subsumptions  of  concrete  legal  relations  under  a  definite  legal  rule. 
Dr.  Karl  Gareis,  "Enzyklopadie  und  Methodologie  der  Rechtswissen- 
schaft"  [vol.  i  of  this  Series —  "Introduction  to  the  Science  of  Law"J, 
section  2,  page  4:  "Even  the  thinking  of  a  child  is  nothing  but  the 
arranging  and  subordinating  of  each  specific  phenomenon  under  one  of  the 
few  concepts  it  knows,  and  the  lawyer  who  defines  a  certain  state  of  facts 
as  'murder'  or  'lease'  does  exactly  the  same  thing.  Thus  all  thinking 
is  subsuming,  and  the  highest  thought  is  the  subsumption  of  all  things 
conceivable  under  the  absolute." 


334         WURZEL:   JURIDICAL  THINKING    [Cn.X 

§  13.  Some  Positive  Observations  Regarding  the  Scope 
of  Juridical  Thinking.  There  is  a  class  of  courts  which 
is  relieved  from  the  consideration  of  facts,  to  wit,  the 
courts  of  third  instance.  For  example,  in  a  civil  action 
in  Austria  the  Supreme  Court  bases  its  decisions  on  the 
facts  as  found  by  the  two  courts  below  it  (unless  the 
record  plainly  contradicts  such  findings).  Its  own  func- 
tions are  to  remedy  certain  formal  faults  of  procedure 
that  may  have  occurred,  and  to  reexamine  errors  in  the 
judgment.  Eliminating,  as  is  easily  done,  cases  in  the 
former  class,  there  remain  only  cases  in  which  the 
Supreme  Court  has  no  business  but  to  test  the  character 
of  juridical  thinking  in  the  courts  below.  Following  the 
principle  laid  down  in  the  preceding  section,  that  means 
the  interpretation  of  the  legal  rules,  the  reconstruction  of 
the  intention  of  the  legislator,  and  possibly  in  addition 
the  employment  of  analogies. 

At  this  point  one  may  be  struck  by  the  fact  that  the 
statute  itself,  in  declaring  the  functions  of  the  Supreme 
Court,  does  not  employ  the  terms  found  in  theoretical 
treatises,  such*  as  "interpretation,"  "evolution  of  the 
law,"  or  "analogy,"  but  uses  an  expression  that  is  far  less 
definite,  to  wit,  "consideration  of  questions  of  law," 
as  if  it  felt  the  technical  terms  mentioned  above  to  be  too 
narrow.83 

We  shall  wonder  even  more  if  we  cast  a  look  into  the 
reports  of  Supreme  Court  decisions.  Only  in  a  certain 
number  of  these  does  the  court  aim  at  the  discovery 
of  the  meaning  of  a  statute  (it  should  be  remembered  that 
in  cases  under  the  general  private  law  customary  law 
is  not  given  effect)  by  historical  investigation,  systematic 
combination,  linguistic  tests,  or  any  other  proper  means. 
In  a  large  number  of  decisions  and  opinions  we  find 
an  entirely  different  direction  of  thought.  To  indicate 

88  Austrian  Code  of  Civil  Procedure,   §  503,  line  4. 


§13]          THE  JUDGE  AND  THE  FACTS  335 

the  limits  to  which  the  thoughts  of  the  Supreme  Court  as 
found  in  its  decisions  frequently  extend  I  mention  the 
following  examples.  Very  often,  perhaps  one  may  say 
as  a  general  thing,  the  court  hesitates  by  no  means  to 
state  quite  independently  that  somebody  "must  have 
known"  some  circumstance;  that  he  "obviously  knew" 
that  he  was  in  possession  unlawfully;  that  "he  acted  in 
bad  faith" ;  that  this  or  the  other  act  of  his  was  negligent ; 
that  some  other  act  was  arbitrary  or  malicious  or  against 
good  faith*;  that  such  and  such  was  the  manifest  intention 
of  a  party  to  some  contract,  and  much  more  of  that  sort. 
In  all  such  cases  we  can  do  nothing  with  the  theoretical 
limitation  given  in  the  preceding  section. 

For  the  knowledge  or  lack  of  knowledge  regarding  a 
certain  fact,  the  failure  to  pay  proper  attention  such  as 
constitutes  negligence;  good  or  bad  faith,  which  is  a  spe- 
cies of  knowledge  or  the  lack  of  it ;  malice;  the  intention 
of  a  party, —  all  these  things  are  after  all  facts,  psychical 
or  internal  ones  to  be  sure,  but  still  pure  facts.84  What- 
ever else  may  be  the  explanation,  to  find  them  is 
assuredly  not  "reconstruction  of  the  legislative  intention," 
nor  interpretation.  Well,  then,  does  the  Supreme  Court 
persistently  exceed  its  jurisdiction  whenever  it  undertakes 
independently  to  find  such  facts,  or  is  that  also  a  part  of 
"consideration  of  questions  of  law,"  in  other  words 
of  juridical  thinking?  In  criminal  cases  we  are  much 
stricter  in  treating  phenomena  like  those  mentioned 
simply  as  facts.  Must  we  assume,  therefore,  that  the 
boundaries  of  juridical  thinking  are  movable?  Has  the 
line  dividing  the  facts  from  the  law,  between  the  things 
to  be  subsumed  and  that  under  which  they  are  to  be 
subsumed,  become  obliterated  in  some  place  or  other? 

That  this  is  actually  the  case  one  is  led  to  believe  also 
in  connection  with  another  legal  institution,  to  wit, 

M  Cf .  Thol,  note  76  supra. 


336        WURZEL:  JURIDICAL  THINKING    [Cn.X 

proof  by  expert  evidence.  Anybody  with  experience  in 
this  matter  knows  how  infinitely  difficult  it  is  to  keep 
apart  the  functions  of  the  witness  and  the  judge,  how 
closely  interwoven  are  questions  of  what  is  and  what  ought 
to  be.  Whenever  an  expert  witness  in  questioned  regard- 
ing, let  us  say,  some  engineering  device,  for  instance  a 
safety  appliance,  we  may  rest  assured  that  he  will  state 
how  the  appliance  ought  to  be  made.  In  this  expression 
"ought,"  the  element  of  technical  adaptation  to  purpose 
and  that  of  some  form  of  social  duty  are  so  commingled 
that  they  cannot  be  separated.  Hence,  the  interminable 
controversies  in  every  trial  regarding  the  admissibility 
of  some  expert  testimony  to  which  the  objection  is  raised 
that  it  encroaches  on  the  functions  of  court  or  jury. 

At  any  rate,  these  considerations  seem  to  point  to  the 
conclusion  that  the  discovery  of  the  legislative  intention 
is  not  all  there  is  to  juridical  thinking. 

§  14.  A  Logical  Digression.  We  have  already  sug- 
gested that  a  number  of  errors  in  the  prevalent  opinions 
regarding  the  nature  of  juridical  thinking  may  be  ex- 
plained by  the  habit  of  employing  none  but  the  methods 
of  the  old  scholastic  logic.  We  now  propose  to  call 
attention  to  some  of  the  most  important  points  of  view 
regarding  this  matter. 

The  older  form  of  logic  was  derived  principally  from  the 
speculative  as  contrasted  with  the  empirical  sciences. 
The  main  characteristics  of  these  sciences  are  as  follows : 

1.  They  do  not  derive  their    subject-matter    from 
experience,  but  either  create  it  themselves  by  a  process 
of  thinking,  or  at  least  take  it  up  in  a  form  which  has 
been  reduced,  by  abstraction  carried  as  far  as  possible, 
to  the  simplest  component  features. 

2.  As  a  consequence,  the  conceptions  and  ideas  with 
which  these  sciences  deal  are  exactly  defined,  so  far  at 
least  as  regards  those  qualities  that  are  under  considera- 


§14]  A  LOGICAL  DIGRESSION  337 

tion  and  in  mathematics  as  regards  all  their  qualities, 
so  that  nothing  vague  or  disturbing  is  encountered.85 

It  follows  that  the  subject-matter  of  these  sciences 
is  of  the  simplest  nature.86  This  is  the  reason  why  all 
mathematical  thinking  is  perfectly  exact  and  precisely 
consistent.  The  concepts  of  mathematics  (leaving  out  of 
account  certain  ultimate  ideas  of  the  higher  mathematics) 
are  exactly  defined  to  the  least  detail,  so  far  as  the  details 
are  of  importance.  In  real  life  there  may  be  all  kinds 
of  figures  of  which  nobody  can  say  whether  they  are 
circles,  ellipses,  or  irregular  lines;  for  the  mathematician 
such  dubious  transitions  do  not  exist.  He  thinks  of  them 
as  pure  circles,  pure  ellipses.  In  mathematics  every 
concept  is  sharply  distinguished  from  all  its  neighbors. 

The  older  type  of  logic,  dealing  as  it  does  mainly 
with  such  relations,  conceives  of  all  human  ideas  as 
sharply  defined  entities  like  those  of  mathematics; 
it  is  fond  of  representing  them  graphically  in  the  form  of 
geometrical  figures  such  as  circles.  One  of  its  principal 
aims  used  to  be  to  obtain  certain  ultimate  forms'modeled 

86  E.g.  every  line,  be  it  drawn  ever  so  finely,  has  in  addition  to  length 
a  certain  breadth,  but  mathematicians  disregard  that  fact  entirely  and 
consider  a  line  as  having  only  one  dimension,  to  wit  length. 

»>  This  axiom  is  very  familiar  to  all  who  have  given  attention  to 
encyclopaedic  science  or  philosophy,  but  has  to  be  explained  for  all  who  re- 
member the  mathematics  of  their  college  days  as  an  exceedingly  compli- 
cated and  difficult  science.  The  latter  fact  is  due  to  this,  that  the  human 
mind,  even  as  regards  relatively  simple  phenomena,  can  take  in  all  their 
relations  with  great  difficulty  only.  In  order  to  understand  how  simple 
mathematics  really  is  one  need  but  compare  it  with  any  phenomenon 
belonging  to  a  science  close  to  it  in  the  scale  of  simplicity,  such  as  physics. 
Pouring  out  a  glass  of  water  is  surely  a  very  simple  physical  occurrence, 
yet  there  is  no  mathematician  in  the  world  capable  of  calculating  where 
and  how  the  various  drops  will  fall.  It  is  possible,  in  theory,  to  find  an 
analytical  formula  representing  the  form  of  some  actual  object,  let  us  say 
a  human  countenance;  to  try  to  draw  up  such  a  formula,  however,  would 
defeat  the  skill  of  the  greatest  mathematician.  Still  more  complicated 
than  the  phenomena  of  physics  and  chemistry  are  those  of  biology,  but 
the  most  complicated  of  all  are  psychological  and  social  ones.  If  we  add 
to  this  list,  between  mathematics  and  physics,  astronomy,  we  shall  ob- 
tain the  well-known  scale  of  Comte. 


338         WURZEL:  JURIDICAL  THINKING    [CH.X 

after  geometrical  relations  of  space.  One  of  these 
ultimate  forms  is  that  of  subsumption,  which  governs 
the  function  of  interpretation.  The  nature  of  subsump- 
tion is  this,  that  the  subject-matter  of  the  minor  premise 
is  conceived  as  contained  in  the  subject-matter  of  the 
major  premise,  whereupon  the  qualities  of  the  major 
subject  are  imputed  to  the  minor  one.  In  law,  these 
qualities  are  the  things  which  the  statute  provides 
regarding  the  subject-matter  with  which  the  major 
premise  deals.  This  operation  of  subsuming  constituted 
the  very  life  of  the  older  logic ;  for  that  mode  of  reasoning 
looked  upon  every  idea  as  something  which  in  its  very 
essence  was  a  schematic  representation,  obtained  by 
abstraction,  i.e.  by  the  elimination  of  all  individual 
qualities  adhering  to  a  group  of  things  belonging  to  a 
certain  class,  and  every  new  thing  belonging  to  the  class 
had  to  fit  into  the  scheme. 

In  this  manner  the  older  form  of  logic  built  up  a  body 
of  thought  firmly  constructed  and  without  internal 
inconsistencies,  but  at  the  same  time  incapable  of  being 
of  the  least  use  for  the  empirical  sciences.  No  scholar, 
and  no  human  being  of  any  kind,  would  dream  of  actually 
regulating  his  thinking  according  to  the  forms  of  that 
sort  of  logic,  as  for  instance  the  syllogisms  of  Barbara 
Celarent  or  similar  forms.  To  do  so  would  not  only  be 
exceedingly  awkward,  but  in  most  matters  it  would 
lead  nowhere;  it  would  amount  to  nothing  but  a  moving 
about  in  a  circle  of  repetitions  and  circumlocutions.  That 
kind  of  logic  is  incapable  of  dealing  with  the  infinite 
variety  of  living  thought. 

There  was  need  of  reform  in  the  science  of  logic.  Dur- 
ing the  last  few  decades  a  movement  has  begun  which 
aims  at  creating  a  form  of  logic  that  may  be  used  as  a 
supreme  method  for  the  special  sciences.  The  strenuous 
endeavors  in  that  direction,  such  as  the  work  of  Erdmann, 


§14]  A  LOGICAL  DIGRESSION  339 

Sigwart,  and  Wundt,  have  by  no  means  accomplished 
their  entire  purpose,  but  important  truths  have  even 
now  been  placed  in  a  clear  light.87 

1.  There  is  first  of  all  the  almost  self-evident  truth 
that  our  logical  thinking  (i.e.  the  intellect)  is  not  sepa- 
rated, as  by  a  Chinese  wall,  from  other  psychological 
processes,  such  as  willing,  feeling,  remembering,  etc.; 
instead,  there  is  a  constant  play  of  influences  exerting 
themselves  from  these  directions  upon  our  thinking, 
yet  not  sufficient  to  destroy  the  logical  character  of 
thought.  These  influences  are  particularly  effective  in 
the  formation  of  concepts. 

Wundt  goes  so  far  as  to  call  the  cooperation  of  the  will 
a  direct  characteristic  of  logical  thinking.  According 
to  him,  the  formation  of  concepts  without  the  influence 
of  the  will  results  in  nothing  but  a  passive  and  un- 
controlled series  of  ideational  or  conceptual  associations. 
The  influence  of  will  upon  thought  takes  the  shape  of  an 
internal  act  of  volition  which  Wundt  calls  apperception 
and  which  it  may  be  popularly  sufficient  to  call  voluntary 
attention.  When  this  internal  act  of  volition  is  performed 
there  occurs  an  active  series  of  states  of  consciousness. 
If  the  will  acts  irregularly  the  series  may  consist  of  noth- 
ing but  imaginative  representations;  or  there  may  be 
logical  thinking,  which  is  characterized  by  the  following: 
the  unification  or  synthesis  of  the  various  ideas  and  their 
mutual  relations  into  new  ideas.  This  synthesis  has  the 
tendency  to  obtain  a  knowledge  of  the  relations  of 
reality.  For  the  purpose  of  obtaining  that  knowledge,  con- 
cepts are  the  most  important  products  of  the  synthesis. 

87  The  account  of  the  matter  given  in  the  text,  in  which-I  have,  in  the 
main,  followed  Wundt,  like  this  entire  digression,  does  not  claim  to  be 
exact.  It  is  not  written  for  professional  logicians  or  psychologists, 
but  proceeds  in  a  popular,  very  much  simplified  manner.  Nevertheless 
I  believe  that  I  have  hit  off  pretty  accurately  the  difference  between  the 
older  and  the  new  ideas. 


340        WURZEL:  JURIDICAL  THINKING    [CH.X 

It  is  apparent  that  Wundt  actually  makes  the  will  the 
foundation  of  all  logical  thinking.  This  proposition 
explains  also  the  influence  of  emotions  upon  thinking, 
even  if  one  does  not  agree  with  Wundt  in  considering 
emotions  as  nothing  but  undeveloped  acts  of  will  that 
fail  to  become  effective. 

2.  These  considerations  imply  also  a  new  idea  of  the 
nature  of  a  concept. 

How  are  concepts  formed?  Every  new  mental  image 
also  reawakens  other  images  formerly  produced,  so  that 
there  are  produced  groups  of  images  connected  by  the 
thread  of  memory.  The  most  important  kind  of  these 
groups  are  concepts.  The  process  is  mainly  one  of 
association,  but  the  arranging  and  eliminating  performed 
by  apperception  are  also  factors.  The  characteristic 
thing  about  a  concept,  by  which  it  becomes  of  such  ex- 
traordinary importance  among  our  various  states  of 
consciousness,  is  this,  that  from  the  entire  group  of  mental 
images  one  image,  ordinarily  the  most  distinct  one,  is 
selected  as  the  dominant  or  typical  one  and  made  the 
representative  of  the  whole  synthetic  product,  i.e.  the 
group  of  images.  This  image  alone  appears  in  the 
focus  of  consciousness  whenever  the  whole  group  is  con- 
templated, while  the  rest  are  observed  indistinctly. 
As  a  result,  it  is  impossible  to  form  a  mental  image  of  a 
concept  that  will  cover  its  entire  logical  content,  as  is 
shown  by  Wundt.88  A  concept  is  not  a  sort  of  diagram — 
for  a  merely  diagrammatical  image  is  an  impossibility. 
It  is  impossible  to  imagine  a  triangle  neither  isosceles 
nor  anisosceles,  neither  isogonic  nor  anisogonic  nor 
right-angled,  in  other  words  a  mere  diagram  of  a  triangle. 
There  is  always  one  distinct  image  which  acts  as  a 
symbol  representing  the  whole  synthetic  group,  while  the 
other  images  are  connected  therewith  by  association, 

»» "Logik,"  p.  217. 


§14]  A  LOGICAL  DIGRESSION  341 

memory,  or  other  psychological  means.  According  as 
the  representative  symbol  is  near  to  or  remote  from 
the  remaining  contents  of  the  concept,  or  as  it  does  or 
does  not  add  to  itself  a  visualized  representation,  the 
concept  is  concrete  or  abstract.  Very  commonly  the 
representative  symbol  appears  before  our  consciousness 
merely  in  the  shape  of  a  word,  so  that,  to  quote  Erd- 
mann's  treatise89  on  logic,  "we  frequently  in  the  course 
of  speech  reproduce  verbal  concepts  without  becoming 
conscious  of  what  the  words  represent."  This  touches 
upon  another  matter  which  the  older  science  of  logic 
was  unable  to  deal  with. 

3.  Influence  of  language  upon  thought.  Language, 
and  the  body  of  concepts  represented  by  it,  is  not 
merely  the  instrument  by  which  we  think,  but  directs 
our  thinking  into  certain  paths.  I  mention  this  point  at 
this  time  in  passing  merely,  because  a  good  many  other 
instances  in  which  our  logical  thinking  is  affected  by 
social  factors  become  more  comprehensible  thereby. 
Thus  it  is  the  observation  of  Sigwart90  that  "in  all  new 
objects,  we  always  notice  most  readily  those  things 
which  agree  with  a  diagram  we  are  already  familiar 
with.  We  constantly  cover  things  up,  so  to  speak,  by 
our  ready-made  images  and  thus  conceal  from  ourselves 
whatever  is  new  and  distinctive  in  them."  Sigwart  here 
uses  the  term  diagram  ("scheme"),  but  it  appears  from 
the  sentence  just  preceding  that  he  does  not  at  all  use  it 
in  the  sense  of  a  definitely  circumscribed  geometrical 
figure.  That  sentence  runs:  "In  the  natural  course  of 
thinking,  all  words  tend  to  expand  their  fields.  Their 
boundaries  are  undefined  and  ever  ready  to  extend  their 
meaning  to  new  but  allied  ideas."  91 

89  "Logik,"  vol.  i,  §8. 

90  "Logik,"  §7. 

91  Comp.  Tertullian,  "De  legibus"  i,  2:    "Semper  hoc  legibus  inesse 
credi  oportet  ut  ad  eas  quoque  personas  et  eas  res  pertineant,  quae 
quandoque  similes  erunt." 


342         WURZEL:   JURIDICAL  THINKING    [CH.X 

§  15.  Application  of  the  Above  Principles  to  Legal 
Concepts92;  Projection.  If  I  were  to  try,  on  the  basis  of 
the  above  observations,  to  find  the  clearest  description 
of  a  concept,  to  represent  it  graphically,  I  should  com- 
pare it  by  no  means  to  a  geometrical  figure.  Rather,  it 
reminds  me  of  a  photograph  with  vague  and  gradually 
vanishing  outlines.  At  first  glance,  the  photograph 
appears  to  be  quite  clear  and  distinct  because  our  eyes 
are  focused  merely  on  the  center,  the  picture  proper. 
Presently,  as  we  proceed  to  fix  the  outlines  of  the  picture, 
we  discover  what  was  at  first  concealed  from  us;  it  is 
impossible  to  tell  definitely  where  the  picture  proper  ends 
and  the  mere  background  begins.  Thus  every  concept  in 
the  empirical  sciences  has  its  central  image  and  beside  it 
a  zone  of  transition  gradually  vanishing  into  nothingness. 
In  some  cases  this  zone  is  broader,  in  others  narrower. 

The  existence  of  this  transition  or  "twilight"  zone  is 
not  to  be  removed  by  any  definition,  no  matter  how 
circumstantial,  because  there  can  be  no  definition  except 
by  means  of  more  concepts.  The  ultimate  reason  for  this 
lack  of  definiteness  is  found  in  the  extreme  complexity 
of  phenomena,  even  those  apparently  quite  simple. 
For  this  reason  one  or  more  qualities  may  be  absent 
from  some  particular  phenomenon,93  and  yet  one  could 

92  On  this  term,  compare  Paul  Eltzbacher,  "Uber  Rechtsbegriffe," 
Berlin,  1899,  pp.  16,  23,  33. 

98  An  example  will  make  this  clearer.  How  simple,  harmonious,  and 
comprehensible  a  concept  does  that  of  "finding"  appear!  Now  Jhering 
("Zivilrechtsfalle  ohne  Entscheidungen,"  p.  103)  tells  of  the  following 
case:  A,  B,  and  C  are  walking  by  the  side  of  a  brook.  On  the  opposite 
bank,  A  sees  a  purse  lying  on  the  ground.  He  tells  his  companions  and 
B  whistles  for  C's  dog,  who  goes  to  retrieve  the  purse.  As  he  is  on  the 
point  of  swimming  back  with  it,  D,  who  is  walking  on  the  other  side, 
sets  his  own  dog  on  C's  dog,  and  as  a  result  picks  up  the  purse.  Who  is  the 
finder?  The  difficulty  of  answering  lies  in  this  that  of  the  various  essen- 
tials of  the  concept  "finding,"  all  of  which  we  have  in  mind  as  a  united 
whole  and  which  are  really  united  in  the  central  point  of  the  concept, 
one  or  the  other  is  absent  in  the  case  of  each  of  the  four  parties.  What 
each  of  the  four  does,  each  time  falls  merely  into  the  twilight  zone  of  the 
concept. 


§15]  PROJECTION  343 

not  say  definitely  that  on  account  of  the  absence  of  one 
of  these  the  phenomenon  is  outside  of  the  concept,  or 
some  other  phenomenon  is  still  within  the  concept 
notwithstanding  the  absence  of  some  particular  quality. 
It  is  utterly  inadmissible  to  demand  an  absolute  likeness 
of  phenomena  as  a  condition  of  being  admitted  as  falling 
within  a  concept. 

Consequently,  the  average  degree  of  indefiniteness 
increases  as  we  ascend  in  the  scale  of  sciences  —  end- 
ing with  sociology94;  in  other  words,  it  increases  as 
abstractness  and  simplicity  decrease  while  the  concrete- 
ness  and  complexity  of  the  subject-matter  grow.  In 
the  lower  mathematics,  the  twilight  zone  equals  zero, 
while  in  the  social  sciences  very  many  concepts,  as  for 
instance  nearly  all  ethical  ones,  such  as  virtue  or  the  good, 
etc.,  are  hardly  more,  when  you  consider  them  closely, 
than  adumbrations  generated  by  feeling. 

Nobody  is  better  able  than  the  lawyer  to  realize  that 
concepts  which  at  first  appear  very  clear  and  definite 
so  as  to  make  us  forget  all  possible  difficulties  in  employ- 
ing them  turn  out  to  be  quite  vague.  Who,  for  instance, 
is  likely  to  have  doubts  about  the  meaning  of  "human 
being"?  Yet  the  law  found  itself  compelled  to  delimitate 
this  concept  more  closely,  for  instance  by  making  rules 
providing  the  time  when  an  embryo  begins  to  be  a  human 
being,  at  what  precise  moment  a  man  may  be  held  to  have 
died,  whether  an  aborted  foetus  or  a  born  monster  is  a 
human  being;  and  then  again  doubts  may  arise  as  to 
what  constitutes  a  monster,  and  so  ad  infinitum. 

If  a  man  is  obliged  to  pay  a  hundred  dollars,  there 
seems  certainly  to  be  no  doubt  at  all  what  he  is  obliged 
to  do.  Yet  if  he  tenders  a  banknote  for  a  hundred 
dollars  and  demands  the  change,  is  he  entitled  thereto? 
Or  he  may  send  ninety  dollars  by  mail,  and  the  addressee 

94  See  note  86  supra. 


344         WURZEL:   JURIDICAL  THINKING    [CH.X 

is  required  to  pay  the  fee  provided ;  did  the  addressee 
receive  ninety  dollars?  A  debtor,  who  is  an  intimate 
friend  of  his  creditor,  puts  ninety  dollars  into  the  drawer 
of  his  absent  creditor's  desk  and  locks  it;  has  he  paid 
his  debt?  Again,  the  debtor  notifies  his  creditor  to  call 
for  his  money  —  may  he  legally  demand  this  of  him? 
And  if  he  may  not,  ordinarily,  is  the  law  different  where 
the  government,  or  a  bank,  is  the  debtor?  All  these 
questions  ordinarily  do  not  enter  consciousness  at  all 
when  we  talk  about  "paying  ninety  dollars,"  because 
our  consciousness  is  focused  on  the  central  feature  of 
the  concepts  "paying  ninety  dollars,"  say  for  instance 
the  image  of  two  persons  one  of  whom  is  handing  over 
ninety  dollars.95 

In  all  such  and  similar  questions,  juridical  thinking 
will  invariably  arrive  at  a  decision,  but  it  can  never  be 
said  in  such  cases  that  the  process  of  arriving  at  a  deci- 
sion consists  of  subsumption  of  phenomena  under  a 
proper  concept,  or  that  the  result  was  already  comprised 
in  the  original  content  of  the  concept.  On  the  contrary, 
when  we  called  the  concept  into  our  consciousness, 
we  never  thought  of  these  boundary  cases,  we  thought 
only  of  the  most  typical  cases.  It  is  exclusively  of  the 
typical  cases  that  one  can  say  they  were  comprised  in  the 
original  concept  as  we  thought  of  it.  For  the  rest,  the 
original  concept  is  merely  a  thread  around  which  new 
phenomena,  similar  but  not  alike,  are  crystallized. 
The  process  by  which  the  concept  is  applied  to  the 
boundary  case  is  not  one  of  analysis,  of  separating 
the  component  parts  of  the  concept  and  seeing 
which  of  the  parts  covers  the  case,  but  one  of  syn- 
thesis, by  connecting  the  original  concept  with  a  new 

94  I  have  intentionally  selected  two  examples  dealing  with  relatively 
simple  physical  facts  and  concrete  concepts,  in  which  the  zone  of  uncer- 
tainty is  narrow.  Now  take  concepts  like  merchant  or  document,  and 
the  sphere  of  uncertainty  will  become  much  broader. 


§15]  PROJECTION  345 

phenomenon  and  extending  the  concept  so  as  to  cover 
the  latter. 

It  remains  to  inquire  by  what  means  the  new  phenom- 
enon and  the  original  concept  may  be  cemented  together. 
I  shall  but  mention,  in  this  place,  that  in  every  synthesis 
the  connecting  link  may  be  either  an  experience  or  a 
state  of  feeling.96  The  central  image  of  the  concept  may 
thus  be  linked  together  with  an  immense  mass  of  phen- 
omena not  originally  contained  in  it.  If  it  comes  into 
contact,  so  to  speak,  with  appropriate  empirical  facts 
and  currents  of  feeling,  it  may  extend  itself  far  beyond 
its  original  limits  by  gradual,  scarcely  noticeable 
stages. 

This  process  is  particularly  interesting  in  connection 
with  the  juridical  form  of  thinking,  because  on  the  one 
hand  such  thinking  stands  in  special  need  of  precision, 
and  because  on  the  other  hand  by  its  tendency  to 
establish  standards,  juridical  thinking  favors  the  extend- 
ing process.  I  shall  call  this  process  projection,  meaning 
the  projection  of  a  concept  found  in  formulated  law  into 
the  world  of  actual  phenomena,  and  place  it  in  the 
middle  between  subsumption  proper  and  analogy.  The 
nature  of  projection  will  become  clearer  in  the  course 
of  my  treatment,  especially  as  I  shall  speak  of  the 
connecting  links  employed  by  juridical  thinking  in  bring- 
ing together  a  fact  and  a  legal  concept.  At  present 
I  may  define  it,  from  the  point  of  view  of  its  effect: 
Projection  is  the  extension  of  a  concept  found  in  formu- 
lated law  to  phenomena  which  were  not  originally 
contained  in  the  concept,  or  at  least  were  not  demon- 
strably  a  part  of  the  group  of  images  forming  the  con- 
cept, without  at  the  same  time  changing  the  nature  of  the 
concept  as  such. 

•«  Kant's  famous  question  whether  synthetic  judgments  are  possible 
a  priori  must  be  answered  in  the  negative. 


346         WURZEL:   JURIDICAL  THINKING    [Cn.X 

A  few  examples  may  illustrate  the  matter.  A  statute 
passed  in  1700  provides  something  or  other,  let  us  say 
it  imposes  a  tax,  on  mills  "run  by  machine  power." 
As  long  as  the  statute  remains  in  force,  it  may  without 
hesitation  be  applied  to  steam  or  electric  mills,  although 
in  1700  by  "machine  power"  one  had  no  idea  of  anything 
except  machines  driven  by  wind  or  water.  Thus  to 
apply  it  is  neither  a  matter  of  subsumption  nor  of  an- 
alogy,97 for  we  are  not  required  to  change  the  nature  of  the 
concept  "machine  power"  in  order  to  apply  it  to  steam 
machinery.  There  is  no  gap,  we  can  apply  the  concept 
immediately  and  directly ;  we  attach  the  new  phenomenon 
to  the  old  concept  as  an  integral  part,  although  it  was 
not  originally  contained  in  it  —  in  short  we  project 
the  old  concept  into  the  new  phenomenon.  Let  me  add, 
in  this  case  the  connecting  link  would  be  constituted  by 
economic  and  physical  data  which  in  the  meantime  had 
become  part  of  the  meaning  of  the  term  "machine"  as 
used  in  ordinary  language. 

Take  another  example.  A  statute  provides  a  penalty 
for  the  counterfeiting  of  money  at  a  time  when  nothing 
but  coin  circulates  in  the  country.  Later  paper  money 
is  introduced.  There  would  be  no  hesitation  about  hold- 
ing that  the  counterfeiting  of  paper  money  also  is  punish- 
able. Jhering  classifies  this  example,98  in  default  of  a 
better  category,  among  the  cases  of  analogy.  However, 
if  this  were  a  case  of  analogy,  one  would  also  have  to 
speak  of  analogy  where  gold  is  added  to  silver  coin,  or  a 
different  emission  of  paper  to  those  already  in  circula- 
tion ;  or  still  more  where  a  new  form  of  coinage  is  adopted, 
such  as  (in  Austria)  the  substitution  of  crowns  for 
florins;  one  would  have  to  hold  that  the  statute  had 

•'  We  should  therefore  not  hesitate  to  apply  the  statute  in  this  way 
even  if  it  contained  a  prohibition  of  extension  by  analogy. 
18  "Geist  des  romischen  Rechts,"  §  3,  note  6. 


§15]  PROJECTION  347 

become  obsolete  because  the  subject-matter  to  which  it 
referred  had  ceased  to  exist.  Yet  nobody  would  dream 
of  such  a  thing.  As  a  matter  of  fact,  here  also  the  con- 
cept "money"  is  projected  upon  the  new  varieties  of 
money  without  producing  in  anybody  a  feeling  as  if  he 
had  been  compelled  to  supply  a  rule  for  a  case  not  pro- 
vided for  in  the  statute. 

In  the  two  examples  given  above,  projection  can  be  dis- 
tinguished rather  sharply  from  subsumption;  they 
have  been  selected  with  a  view  to  making  subsumption 
appear  clearly  as  a  historical  anachronism.  This  is  not, 
however,  ordinarily  the  case,  especially  because  the 
juridical  form  of  thinking  makes  use  of  some  artificial 
devices  for  the  purpose  of  narrowing  as  much  as  possible 
the  field  of  projection  and  extending  that  of  subsump- 
tion and  to  make  the  original  meaning  or  intention  of 
the  formulated  rule  seem  as  comprehensive  as  possible, 
even  at  the  expense  of  the  truth  of  facts. 

It  is  evident  that  the  legislator,  in  defining  fraud, 
could  have  had  in  mind  but  a  very  small  part  of  those 
more  or  less  ingenious  acts  which  afterwards  may  have 
been  devised  by  insidious  tricksters  and  to  which  the 
concepts  contained  in  the  definition,  with  the  wide  zone  of 
uncertainty  surrounding  them,  were  applied ;  but  it  would 
be  very  difficult  to  draw  a  distinct  line  in  this  matter. 

It  is  possible  for  the  projection  to  change  in  accordance 
with  changes  in  the  effect  of  the  "connecting  links," 
as  clearly  appears  from  observations  made  above.  It  is 
well  known  how  the  concept  fraud  was  frequently  pro- 
jected upon  gross  cases  of  usury  during  the  period  when 
(in  Austria)  usury  was  not  prohibited.  The  "connecting 
link"  was  a  consciousness  of  economic  injuries  together 
with  moral  indignation  because  usury  was  not  made 
punishable.  When  the  penalties  for  usury  were  reintro- 
duced,  decisions  involving  such  projection  ceased. 


348        WURZEL:  JURIDICAL  THINKING    [Cn.X 

Viennese  cabmen  used  to  be  much  harassed  by  prose- 
cutions for  fast  driving."  When  electric  street  railways 
and  automobiles  became  common,  these  ceased  almost 
entirely.  Impressed  by  the  accelerated  speed  generally 
prevailing  in  the  streets,  the  courts  ceased  to  project  into 
the  concept  of  "fast  driving"  a  rate  of  speed  which  for 
decades  had  been  held  to  be  such,  and  yet  the  concept 
"fast  driving,"  as  employed  in  the  law,  had  not  changed 
at  all,  and  according  to  the  ideas  of  the  author  of  the 
penal  provision  that  speed  unquestionably  constituted 
"fast  driving." 

It  is  also  possible  for  the  same  concept  to  be  projected 
in  different  ways  at  the  same  time.  The  term  and 
concept  "weapon"  has  really  but  a  single  meaning. 
Nevertheless,  in  section  158  of  the  (Austrian)  Penal  Code, 
treating  of  dueling,  the  term  is,  under  the  influence  of 
ideas  of  chivalrous  honor  which  are  unfavorable  to  a 
further  projection,  interpreted  as  meaning  military 
weapons  only,  such  as  pistols  and  sabers;  while  the  same 
concept,  in  treating  of  the  crime  of  rioting  in  the  Penal 
Code,100  is  projected  also  upon  entirely  different  instru- 
ments, such  as  sticks,  clubs,  scythes,  and  the  like.  Yet 
it  cannot  certainly  be  proved  that  the  legislator,  when 
he  used  the  term  weapon,  had  in  mind  anything  but  the 
central  image  of  the  concept,  to  wit:  military  weapons. 
Just  as  on  the  one  hand  projection  cannot  always  be 
sharply  distinguished  from  subsumption,  so  it  may  not  be 
clearly  separable  from  analogy.  These  three  mental 
processes  shade  off  into  each  other.  By  gradual  extension 
of  projection  you  reach  by  gentle  and  almost  impercepti- 
ble steps  what  is  clearly  analogy — the  difference  is  merely 
one  of  degree.  We  can  only  repeat  what  was  stated 

K  This  amusing  example  I  have  taken  from  a  public  lecture  recently 
delivered  by  Dr.  Elbogen. 
">o§83. 


§15]  PROJECTION  349 

before,  that  there  are  no  leaps  and  discontinuities  in 
juridical  thinking.  Hence  it  is  feasible,  by  very  extensive 
projection,  to  conceal  a  real  analogy  or  at  least  to  create 
boundary  line  cases.  For  example  there  might  be  a 
question  how  one  should  classify  the  suggestion  that  the 
protection  afforded  to  railways  by  the  section  m  of  the 
(Austrian)  Penal  Code  ought  to  be  applied  in  favor  of 
telegraph  lines  operated  in  connection  therewith ;  accord- 
ing to  the  treatise  of  Lammasch102  on  criminal  law 
this  would  be  a  case  of  "extensive  interpretation." 
Or  to  what  class  would  belong  the  "subsumption" 
of  the  "white  slave  trade,"  about  which  so  much  has 
been  said  recently,  under  the  concept  "kidnaping?"103 

With  these  reservations,  I  believe  I  am  correct  in 
fixing  the  bounds  of  projection  on  the  side  of  analogy 
by  saying  that  there  is  a  case  of  construction  by  analogy 
whenever,  and  only  when,  we  have  the  impression  that 
the  new  phenomenon  cannot  be  annexed  directly  to 
the  concept  except  by  substituting  another  of  the  images 
forming  the  concept  for  the  image  that  has  thereto- 
fore been  the  dominant  or  representative  and  central 
image. 

In  conclusion  of  this  section  I  may  remark  that  I  have 
omitted  the  numerous  complications  arising  in  connection 
with  most  of  the  legal  rules  and  legal  concepts  to  which 
these  discussions  apply. 

§  16.  The  Legislator.  By  formulating  the  concept 
"projection"  it  was  my  purpose  not  merely  to  furnish  a 
new  way  of  classifying  the  various  forms  of  interpretation 
in  the  ordinary  sense  of  the  term,  but  to  show  the  legiti- 
macy of  a  wide  field  of  ideas  and  mental  processes  for 
juridical  thinking,  which  it  is  the  custom  persistently 

"'  §  85  (c). 

102  "Oesterreichisches  Strafrecht,"  §  2. 

103  Lammasch,  op.  cit.,  §  47. 


350         WURZEL:   JURIDICAL  THINKING    [CH.X 

to  ignore.104  All  the  great  array  of  reasonings  and  con- 
siderations referred  to  in  the  preceding  section,  which 
neither  deal  with  the  finding  of  the  facts  nor  really  bring 
to  light  another  meaning  of  a  legal  provision,  but  labor 
in  a  variety  of  ways  over  a  state  of  facts  clearly  estab- 
lished and  a  meaning  of  the  provision  that  is  not  at  all 
ambiguous  —  all  these  ordinarily  have  for  their  end  the 
establishment  of  a  connection  between  the  facts  and  a 
concept  in  which  they  are  not  yet  contained.  They 
relate  to  projection. 

While  it  is  the  function  of  interpretation  in  its  ordinary 
sense  to  reveal  simply  what  is  already  contained  in  the 
legal  rule,105  projection  asserts  that  the  results  obtained  by 
it  are  new  and  were  not  already  contained  in  the  mind  of 
the  legislator. 

One  may  suspect  at  the  outset  that  a  theory  which  ig- 
nores these  phenomena  cannot  live  at  all  except  by  se- 
cretly operating  with  some  inexactitude,  some  variable 
quantity  which,  so  to  say,  forms  a  hiding-place  in  which 
all  inconsistencies  are  concealed  as  well  as  may  be.  It 
is  not  difficult  to  discover  this  variable  quantity. 

>•«  Comp.  Gareis,  "Encyklopadie  der  Rechtswissenschaft"  [vol.  i 
of  this  Series],  section  13 :  "To  apply  the  law  is  a  mental  operation  directed 
towards  the  subsumption  of  a  state  of  facts  under  a  legal  rule." 

i°5  Thai's  instinct  for  truth  could  not  fail  to  see  that  in  reality  this  is  not 
the  case,  and  consequently  he  insists  quite  impressively  on  the  newness 
of  the  result.  However,  he  does  not  know  how  to  reconcile  this  with  the 
rest  of  his  views  regarding  the  theory  of  interpretation,  feels  embar- 
rassed, and  loses  himself  among  complications.  Comp.  his  "Einleitung 
in  das  deutsche  Privatrecht,"  section  58:  "Interpretation  also  must 
always  [?J  produce  a  new  rule.  For  the  rule  gained  by  interpretation 
had  no  existence  prior  thereto.  At  the  same  time,  this  rule  is  a  part  of 
the  statutory  rule,  for  it  has  its  deeper  foundation  in  the  text  of  the 
statute.  All  legal  science  had  to  do  was  to  find  the  intended  content  of 
the  statute."  (Then  it  was  not  new  after  all?)  "Interpretation  is  always 
receptive  and  productive  at  the  same  time."  Comp.  also  Pfaff- Hoff- 
mann, "Kommentar,"  p.  169:  "If  we  were  to  take  an  inventory  of  our 
juridical  convictions,  many  of  us  would  be  surprised  at  the  number  of 
principles  they  accept  but  for  which  they  could  find  no  authority  in  the 
codes." 


§16]  THE  LEGISLATOR  351 

• 

Leaving  out  of  account  the  use  of  analogy  which  is  held 
to  be  anomalous,  it  is  claimed  that  the  only  purpose  of 
juridical  thinking  is  to  find  the  will,  meaning,  or  intention 
of  the  legislator.  Now  it  may  be  asked :  Who  is  this  legis- 
lator whose  will  constitutes  the  sole  subject-matter  of 
jurisprudence?  Is  he  something  real,  something  having  an 
empirical  existence,  as  is  proper  for  a  positivistic  science? 

I  disregard  all  theories  of  legal  philosophers  regarding 
the  ultimate  reason  why  laws  have  binding  force,  theories 
which  find  this  ultimate  reason  variously  in  the  will  of 
God,  the  will  of  the  people,  common  consent,  etc.,106 
and  confine  myself  exclusively  to  the  views  found  in 
the  teachings  of  practical,  exact  jurisprudence.  Who  is 
this  "legislator"? 

Is  it  really,  as  taught  in  constitutional  law,  in  monarchi- 
cal States  the  prince,  in  republics  the  representative 
assembly  of  the  people?  But  anybody  can  see  that  in  a 
modern  State  the  prince  would  have  to  be  a  professional 
lawyer  even  to  know  the  titles  and  general  contents  of  the 
many  laws  and  ordinances  promulgated  in  his  name. 
Just  look  at  the  outside  of  the  ponderous  tomes  of  a  set 
of  the  "Reichsgesetzblatt,"  and  you  will  at  once  renounce 
that  idea. 

For  a  long  time  this  question  used  to  be  evaded 
altogether.  By  boldly  identifying  "will  of  the  legislator" 
and  "will  of  the  law,"107  and  by  confining  oneself  mainly 
to  the  text  of  the  statute  for  discovering  this  "will,"  108 

»>•  These  theories  are  found  collected  in  Bierling,  "Kritik  juristischer 
Grundbegriffe."  The  author  himself  holds  that  the  constitutive  element 
of  law  is  found  in  the  continuous  acceptation  of  a  principle  as  the  rule 
of  their  social  life  by  those  subject  to  it. 

»«*  Unless  one  is  to  personify  the  statute  after  the  manner  of  mythology, 
that  means  nothing  less  than  "the  will  of  some  person,  the  identity  of 
whom  is  irrelevant,  expressed  in  the  statute."  Comp.  Eckhard,  "Her- 
meneuticae  juris  libri  duo,"  section  4,  note:  "In  hermeneuticis  sensus 
auctoris  a  sensu  orationis  non  discrepat  sed  pro  eodem  habetur." 

J»8  Thibaul,  in  his  "Theorie  der  logischenAuslegung,"  section  29, says: 
"In  practice,  a  lawyer  will  interpret  a  statute  logically  in  those  cases 


352         WURZEL:   JURIDICAL  THINKING    [CH.X 

people  escaped  to  a  degree  the  necessity  of  bothering 
about  the  person  of  the  legislator.  Then  the  Historical 
School  came  upon  the  scene  with  its  emphasis  on  the 
historical  factor.  Moreover,  as  the  result  of  constitu- 
tional and  other  changes,  the  custom  arose  of  publishing 
the  preliminary  work  of  statute-making,  which  had  hardly 
ever  been  done  theretofore.  Such  were  collections  of 
data,  reports  of  committees,  proceedings  of  parliamentary 
bodies,  bills,  and  the  like.  Then  at  last  it  was  possible 
to  find  the  real  and  tangible  person  of  this  mystical  legis- 
lator whose  state  of  consciousness,  whose  "will"  was  to  be 
explored  by  juridical  science.  Quite  obviously,  the  legis- 
lators are  the  draftsmen,  with  their  collaborators  and 
helpers,  all  who  take  part  in  drafting  and  editing  statutes. 
"Necessarily,  the  legislative  intention  is  identical  with 
the  meaning  which  the  authors  of  the  statutes  attached 
to  the  words  employed  by  them,"  and  for  that  reason 
it  was  claimed  that,  for  example,  the  intention  of  the 
committees  that  drew  the  commercial  code  or  the  nego- 
tiable instruments  law  ought  to  be  considered  as  the  will 
of  the  legislator.109 

But  behold!  This  apparently  self-evident  conclusion, 
which  some  jurists  seized  upon  with  eagerness,  met 
for  the  most  part  with  nothing  but  sceptical  distrust  and 
open  opposition.  People  reject  and  struggle  against  this 
sort  of  substantiation  of  the  person  of  the  legislator, 
against  any  tangible  description  of  the  subject-matter  of 
legal  inquiry.  Another  conception  is  opposed  to  it: 
the  legislator,  it  is  asserted,  does  not  at  all  intend  this 
or  that  meaning;  what  he  "wills"  is  a  law  in  general, 

only  where  the  'principia  cognoscendi,"  the  data  for  discovering  the 
sense,  can  be  obtained  from  the  law  itself.  That  alone  is  positive  law 
which  has  been  promulgated  as  such."  Comp.  with  this  a  remark  of 
Unger's:  "Thibaut's  self-limitation  was  of  course  nothing  but  a  matter 
of  theory." 

iw  Goldschmidt,  "Handbuch,"  vol.  i,  §§  310  seq. 


§16]  THE  LEGISLATOR  353 

and  the  law  as  thus  given  is  the  only  thing  with  which  the 
lawyer  has  to  deal. 

Thus  Hahn  has  said110:  "Law  is  not  what  the  legis- 
lator intends,  but  what  he  has  solemnly,  by  his  statute, 
declared  to  be  that  which  he  intends."  And  very  dis- 
tinctly Janka  asserts  in  his  book  on  criminal  law111: 
"Interpretation  has  to  deal  with  the  statute,  with  the 
legislative  expression,  and  not  with  the  legislative  inten- 
tion that  may  lie  behind  the  expressed  declaration. 
If  the  legislator  has  intended  to  express  something 
different  from  what  he  has  expressed,  or  if  he  has  intended 
to  express  something  he  did  not  express,  yet,  even  if  the 
divergence  were  conclusively  proven  by  extraneous 
evidence,  that  which  has  been  expressed  is  in  effect  in 
the  form  in  which  it  is  expressed."  Between  these 
extremes,  various  shades  of  intermediate  opinions  arose. 
Pfaff  and  Hoffmann,  in  their  Commentary,  drew  up  a 
complete  scale  of  opinions,  beginning  with  that  of  Sieben- 
haar,  and  running  on  through  those  of  Thol,  Unger, 
Hahn,  Menger,  Pfaff  and  Hoffmann  themselves,  to  that 
of  Goldschmidt.  This  is  the  celebrated  debate  on  the 
effect  of  the  reports  of  committee  proceedings,  into  which 
I  propose  by  no  means  to  enter  in  this  place. 

For  in  accordance  with  the  principle  of  positivistic 
investigation  for  which  I  am  contending  it  is  quite 
enough  for  me  to  establish  the  fact  that  there  is  a  per- 
sistent disagreement  on  so  fundamental  a  question  be- 
tween lawyers  of  eminence,  not  one  of  whom  can  be 
charged  with  superficiality  or  ignorance,  and  that  this 
disagreement  cannot  be  removed  by  discussion.  The 
very  existence  of  such  a  disagreement  is  proof  that  neither 
of  the  extreme  opinions  corresponds  to  the  relations  of 
social  power.  Neither  can  be  correct.  The  existence  of 

110  "Kommentar  zum  Handelsgesetzbuch,"  vol.  i,  §§48  seq. 
in  "Oesterreichisches  Strafrecht,"  §  23. 


354         WURZEL:   JURIDICAL  THINKING    [Cn.X 

this  dispute  appears  to  me  to  express  the  following  fact, 
which  is  often  misunderstood  and  will  be  more  fully 
discussed  in  the  succeeding  chapter.  It  is  that  the  juri- 
dical truth  regarding  the  meaning  of  a  legal  rule  may 
sometimes,  but  by  no  means  always,  be  identical  with  the 
historical  truth;  and  this  for  the  reason  that  the  results 
of  an  historical  inquiry  into  the  law  will  lose  their  author- 
itative convincing  power  precisely  in  the  degree  in  which 
they  attain  positive  certainty,  whenever  the  inquiry  has 
started  from  the  wrong  point,  or  has  gone  beyond  the 
proper  goal.  We  have  here  an  automatic  safety  appli- 
ance against  mere  dry-as-dust  erudition.  The  results 
of  interpretation,  gained  in  this  manner,  may  actually 
lack  precisely  that  authority,  that  very  specific  element 
by  which  the  command  of  the  law  is  differentiated  from 
every  other  form  of  opinion,  and  by  which  it  does  become 
the  rule  of  life.  There  are  limits  to  the  propriety  of 
inquiring  into  what  lies  behind  the  statute,  and  a  good 
test  of  what  is  still  proper  is  found  in  what  the  courts  are 
willing  to  admit.112 

In  the  controversy  we  have  referred  to  this  process  is 
exhibited  in  the  plainest  manner.  What  good  does  it  do, 
if  it  is  proven  in  the  most  convincing  manner  that  Hye, 
the  author  of  the  Penal  Code  of  1852,  or  Baron  von  Hahn, 
or  Sonnenfels,  the  two  who  wrote  the  draft  published  in 
1803  from  which  a  certain  provision  was  taken  into  the 
Penal  Code  of  1852,  connected  with  this  provision  a  spe- 
cial meaning  which  it  is  not  possible  to  extract  from  the 

"«  There  is  not  very  much  of  this,  however,  so  far  as  the  history  of  per- 
sonalities as  distinguished  from  the  history  of  principles  is  concerned- 
Thus  some  people  complain  (e.g.  Ofner  in  "Juristische  Blatter," 
July  27,  1902)  that  in  practice  the  courts  disregard  the  record  of  proceed- 
ings of  the  committee  to  draw  up  the  Austrian  Civil  Code,  which  was 
then  recently  published.  It  would  seem,  however,  that  a  judge  would 
argue  like  this:  The  fact  that  the  legislator  during  so  many  decades  kept 
these  proceedings  secret,  seems  to  indicate  that  he  himself  did  not  intend 
that  the  courts  should  be  guided  by  them.  He  must  have  meant  that  the 
law  should  be  applied  as  could  be  done  with  regard  to  the  text  itself. 


§16]  THE  LEGISLATOR  355 

statute  itself?  Their  opinion  is  not  likely  to  prevail  on 
the  court  as  an  authority  in  the  same  way  as  a  clear 
provision  of  the  statute.  The  judge  will  feel  that  he  is  at 
liberty  to  ignore  such  an  opinion  without  being  charge- 
able with  a  disregard  of  the  statute,  and  he  will  ask 
himself  first  of  all  whether  there  is  any  need  of  consider- 
ing it  at  all.  The  historical  showing  has  not  solved  the 
uncertainty  regarding  the  meaning,  it  has  merely 
changed  its  form. 

Dernburg,  in  his  "Pandektenrecht"113  advises  students 
to  familiarize  themselves  with  the  special  peculiarities 
of  the  various  Roman  jurists,  because  thereby  a  good 
many  misapprehensions  may  be  avoided.  Manifestly 
he  must  have  had  in  mind  the  style  of  the  various  pass- 
ages in  the  "Corpus  Juris,"  for  it  would  be  difficult  to 
imagine  how  any  party  to  an  action  could  support  his 
side  by  showing  that  Alfenus  Varus  had  a  comfortable, 
phlegmatic  temperament  or  that  Labeo  was  the  type  of  a 
bureaucrat.  Surely,  there  would  be  no  answer  to  such 
argument  except  an  indulgent  smile. 

In  brief,  the  "legislator,"  who  has  been  so  much  sought 
for  and  whom  some  believe  to  have  found,  is  still  hidden 
in  darkness.  Lawyers  daily  and  hourly  profess  to  dis- 
cover his  will,  his  intention,  his  reasons — -but  none  of 
them  can  tell  what  particular,  tangible  creature  on  earth 
he  means  when  he  speaks  of  him.114  The  truth  of  it  is 
that  it  is  impossible  to  point  out  who  the  legislator 
is.  For  it  is  precisely  the  mysterious  indefiniteness 

"3  §  36. 

»<  How  little  that  which  lawyers  mean  by  "the  will  of  the  legislator" 
has  in  common  with  anything  actually  existing  in  space  or  time,  may- 
be seen  from  this,  that  at  one  time  nobody  hesitated  to  base  even  the 
whole  of  customary  law  on  that  very  "will  of  the  legislator."  Recent 
theorists  have  just  begun  to  balk  at  this  absurdity.  What  we  say  in  the 
text  goes  a  little  farther  than  that.  The  opposite  paradox  is  represented 
by  Frenzel  ("Recht  und  Rechtssatze,"  Leipzig,  1902),  who  explains  even 
the  authority  of  statutory  law  by  the  customary  law  (section  77  and  else- 
where) . 


356        WURZEL:  JURIDICAL  THINKING    [Cn.X 

surrounding  him  that  makes  it  possible,  without  being 
evidently  inconsistent  with  actual  life,  to  represent  as  the 
exclusive  function  of  legal  science  the  discovery  of  the 
will  of  the  legislator.  That  personage  is  no  real  being 
at  all,  and  one  might  just  as  well  describe  most  of  the 
peculiarities  of  juridical  thinking  by  saying  that  their 
object  is  the  exploration  of  the  qualities  which  lawyers 
are  in  the  habit  of  ascribing  to  their  "legislator." 

We  may  now  recapitulate  some  of  the  truths  we  have 
tried  to  establish  in  the  preceding  discussion,  and  which 
appear  almost  self-evident : 

The  function  of  juridical  thinking  is  by  no  means 
exhausted  by  the  exploration  of  a  will  that  once  had  ac- 
tual existence,  i.e.  the  will  of  the  legislator.  On  the 
contrary,  the  immensely  greater  portion  of  the  facts  and 
groups  of  facts  with  which  lawyers  have  to  deal  were 
never  anticipated  by  the  intention  of  the  legislator, 
nor  were  they  part  of  the  content  of  his  mind,  in  such  a 
way  that  they  could  be  simply  subsumed  under  his 
expressed  concepts.115  The  legislative  will  throws  a 
bright  light  on  just  a  few  points  in  the  vast  field  of  life. 
The  rest  of  the  field  cannot  be  brought  within  the  illum- 
inated area  by  prestidigitator ial  tricks,  of  purely  logical 
operations  like  deduction,  the  finding  of  the  "ratio  legis," 
etc.116  The  illuminated  places  have  but  to  serve  the 
function  of  centers  of  attraction  or  convergence.  The 
attachment  to  the  will  of  the  legislator  (if  that  term  is 
intended  to  have  a  positive  meaning  at  all)  of  new  facts 
lying  within  the  zones  of  transition,  which  we  have  termed 

»*  Or  instead  of  subsumption,  possibly  deduction.  About  this,  further 
on.  For  the  present  we  shall  ignore  a  possible  multiplicity  of  legal  rules. 

"•  There  are  technical  reasons  why,  in  legislation,  the  will  of  the  legis- 
lator must  not  be  expressed  in  very  abstract  and  general  form.  Aside 
from  the  uncertainty  of  their  application,  there  would  be  danger  of 
the  courts  disregarding  such  rules  as  being  "theorizing."  Legal  rules 
must  be  practicable.  (See  Jhering,  "Geist  des  romischen  Rechts.") 


§17]        METHODS  OF  INTERPRETATION         357 

projection,  must  be  effected  by  means  that  have  nothing 
to  do  with  the  legislative  will. 

The  employment  of  analogies,  however,  has  nothing 
anomalous  about  it  so  as  to  require  a  special  and  different 
explanation.  It  is  nothing  but  a  natural  extension  of 
projection,  frequently  proceeding  by  imperceptible 
gradations.  It  differs  from  projection  in  degree  but  not 
in  kind. 

We  have  not  yet  discussed  the  kind  of  mental  powers 
which  are  employed  in  making  a  projection,  but  have  al- 
ready touched  on  one  point.  The  work  of  finding  the 
facts  and  that  of  discovering  the  rules  of  law  (as  you 
might  say,  the  provinces  of  what  is  and  what  ought  to 
be)  are  not  strictly  distinguishable.  Especially,  a 
considerable  part  of  what  is  known  as  "internal  facts" 
belongs  to  the  field  of  juridical  thinking  proper. 


IV.    THE  PRINCIPAL  METHODS  OF  INTERPRETATION 

§  17.  General  Survey.  The  fact  that  the  discovery  of 
the  legislative  will  does  not  always  mean  the  will  of  a  con- 
crete person  cannot  but  exert  an  influence  on  the  shaping 
of  the  methods  by  which  this  discovery  is  sought. 

The  basis  of  these  methods  is  observation  and  logical 
consideration  of  an  actual  body  of  facts.  Yet  if  we  look 
more  closely,  we  shall  find  that  there  are  also  tendencies 
to  extend  the  legislative  will  to  satisfy  the  needs  of  legal 
science,  which  desires  a  rule  that  will  also  cover  all 
future  cases  and  combinations  of  facts.  By  tendencies, 
or  currents,  I  mean  general  and  persistent  directions  of 
will  which  sometimes  lead  us  to  assume  that  the  thing 
willed  actually  exists,  by  excluding  from  our  minds  the 
possibility  of  its  non-existence.  Such  tendencies,  there- 
fore, influence  our  thinking  so  as  to  deviate  from  reality. 
We  shall  have  to  inquire  whether  such  influences 


358        WURZEL:  JURIDICAL  THINKING    [CH.X 

can  be  proven  to  exist  within  the  methods  of  juridical 
thinking. 

By  using  the  term  tendencies  where  I  might  perhaps 
have  said  principles,  I  substitute  for  the  purely  logical, 
a  dynamic  or  psychological  point  of  view.  Thereby  I 
shall  gain  all  the  advantages  the  latter  has  over  the  former, 
especially  in  the  presentation  of  social  relations.  The 
very  term  "tendency"  calls  attention  to  the  fact  that  the 
direction  of  will  contained  in  such  tendency  may  not 
necessarily  materialize  in  all  cases  but  may  be  kept 
down  by  other  and  stronger  considerations  and  tenden- 
cies. On  the  other  hand,  we  need  not  attempt  a  strict 
delimitation,  such  as  by  defining  the  cases  when  the  ten- 
dency fails  to  materialize,  and  will  yet  be  able  to  under- 
stand the  matter. 

Of  the  three  methods  of  interpretation  which  are  con- 
sciously practised  by  lawyers,  to  wit,  the  linguistic  or 
grammatical,  the  systematic,  and  the  historical,  already 
noticed,  the  last  two  alone  will  be  considered. 

It  is  true  that  the  most  important  part  of  interpretation 
is  to  determine  the  meaning  of  the  words  of  the  text 
according  to  the  rules  of  grammar,  so  that  the  most 
important  method  is  undoubtedly  the  grammatical, 
which  is  very  properly  emphasized  by  Thol.117  All  the 
information  and  help  the  lawyer  obtains  from  other 
sources,  is  a  comparatively  unimportant  addition  to  the 
knowledge  regarding  the  statute  which  he  acquires 
by  simply  reading  its  text.  I  need  but  call  attention  to 
the  uncertainty  one  feels  if  one  knows  a  statute  merely 
from  some  synopsis  of  it,  no  matter  how  skillfully 
made,  without  having  read  the  text  itself.  We  should 
add  that  the  authority  a  statute  properly  enjoys 
also  has  something  to  do  with  the  importance  attach- 
ing to  the  grammatical  method.  To  cling  as  closely  as 

117  See  also  Jhering,  "Zweck  im  Recht,"  vol.  2,  p.  15. 


§17]       METHODS  OF  INTERPRETATION         359 

possible  to  the  words  of  a  statute  is  evidence  of  the 
respect  due  to  it. 

Nevertheless,  consideration  of  the  grammatical  or 
linguistic  method  will  be  omitted  in  the  present  con- 
nection, for  the  reason  that  our  inquiry  would  become 
exceedingly  complicated  on  account  of  the  manifold 
extraneous  influences  to  which  linguistic  usage  is  subject. 
Linguistic  usage,  it  should  be  understood,  very  often 
constitutes  nothing  more  than  the  form  in  which  all 
sorts  of  tendencies  enter  into  juridical  thinking,  some  of 
which  we  shall  have  to  take  up  in  succeeding  sections. 
Just  this  point  may  be  mentioned,  that  grammatical 
interpretation  shows  the  tendency  of  extending  the  will 
of  the  legislator  as  much  as  possible  by  the  rule  —  no 
doubt  a  correct  rule  —  that  a  word  is  not,  ordinarily, 
to  be  taken  in  a  mere  partial,  narrow  meaning. 

Next  to  the  linguistic  the  systematic  element  is  of  the 
greatest  importance  in  juridical  thinking,  while  the 
historical  element  comes  after  this.  The  usual  valuation 
of  the  two  methods  is  just  the  opposite.  The  justifica- 
tion of  the  order  adopted  here  will  appear  of  itself  below. 

§  18.  The  Tendency  Towards  Unity.  The  systematic 
element  in  interpretation  consists  in  the  discovery  of  the 
meaning  of  a  provision  by  comparing  it  with  others  of  a 
similar  character  or  referring  to  the  same  subject-matter. 
It  presupposes  that  there  is  a  multiplicity  of  legal  rules 
or  legal  concepts.  There  are,  by  the  way,  still  other  fea- 
tures of  juridical  thinking  caused  by  the  multiplicity 
of  legal  rules.  For  example,  where  the  meaning  of 
several  provisions  in  question  is  certain  and  the  problem 
is  merely  to  find  how  they  interact  upon  each  other 
with  reference  to  a  given  complicated  state  of  facts, 
we  call  the  mental  operations  involved  therein  "juridical 
construction."  Sometimes  it  happens  that  a  certain  state 
of  facts  is  directly  governed  by  a  rule  of  law,  and  that  the 


360        WURZEL:  JURIDICAL  THINKING    [Cn.X 

same  result  may  be  obtained  by  "construing"  other  rules 
of  law.  In  such  cases  the  "construction"  constitutes,  so 
to  speak,  a  test  of  the  correctness  of  the  interpretation.118 
The  finding  of  the  proper  rules  governing  the  facts 
and  their  correct  "construction"  are  generally  considered 
as  the  source  of  all  practical  difficulties  in  administering 
the  law.  Now  there  can  be  no  doubt  that  very  frequently 
the  comparison  of  several  rules  will  show  what  the  real 
intention  is  that  is  contained  but  not  apparent  in  one  of 
the  rules  taken  by  itself.  But  what  interests  us  specially 
in  this  place,  is  that  juridical  thinking,  imbued  with  the 
desire  to  bring  out  as  much  as  possible  of  the  legislative 
intent,  allows  itself  to  be  guided,  sometimes,  by  the 
sole  tendency  of  "constructing"  out  of  the  entire  body  of 
legal  rules  a  single,  harmonious  intention  of  the  legislator. 
In  making  use  of  the  systematic  method  in  this  manner, 
lawyers  often  disregard  altogether  every  kind  of  empirical 
truth.  No  lawyer  seems  to  hesitate  upon  occasion  to 
explain  or  construct  a  statute  in  the  light  of  some  other 
statute,  even  if  they  were  each  adopted  by  entirely 
different  persons  and  at  different  periods,  and  in  doing  so 
he  never  asks  for  even  the  semblance  of  proof  that  the 
legislator  who  enacted  the  statute  to  be  interpreted  ever 
had  the  other  statute  before  his  mind's  eyes.  Instead  of 
that,  it  is  presumed,  and  the  presumption  is  to  be  over- 
come only  by  opposing  considerations  of  greater  strength, 
that  the  legislator,  when  he  enacted  the  rule  which  by 
itself  is  ambiguous,  had  before  his  mind  all  other  legal 
rules  in  force,  so  that  the  most  profound  and  recondite 
meaning  of  every  other  provisions  of  law  may  be  called 
upon  for  the  construction  of  the  statute  in  question. 
Thus  the  "legislator"  is  represented  as  a  being  who  in 

«8  The  mania  for  "construction"  (deduction)  with  this  object  in  view 
was  made  fun  of  by  Jhering.  —  The  term  "construction"  is  connected 
with  the  conception  of  laws  and  legal  institutions  as  units  by  the  combin- 
ation of  which  the  decision  is  built  up. 


§18]  THE  TENDENCY  TO  UNITY  361 

the  immense  multiplicity  of  legal  rules  constantly 
preserves  a  harmonious  unity  and  is  never  inconsistent. 
The  lack  of  reality  created  by  this  unifying  tendency 
may  be  illustrated  by  an  example. 

The  Austrian  personal  tax  act  of  1896,  among  other 
things,  subjects  "the  enterprises  of  joint  stock  companies" 
to  an  increased  rate  of  occupation  tax.  This  means, 
of  course,  enterprises  belonging  to  joint  stock  companies. 
The  concept  is  entirely  clear  to  anybody  who  knows 
what  a  joint  stock  company  and  an  enterprise  are,  but 
of  course  there  is  here  also  that  transition  or  twilight 
zone  of  which  nobody  thinks  at  first  glance.  It  happens 
that  a  joint  stock  company  managing  a  factory  goes  into 
bankruptcy.  The  trustee  refuses  to  pay  the  increased  tax 
rate  on  the  ground  that  the  factory  is  now  an  "enterprise 
of  a  bankrupt  estate"  and  no  longer  "an  enterprise  of  a 
joint  stock  company."  The  matter  comes  into  court,  and 
judgment  is  rendered  against  the  trustee  adjudging  him 
liable  for  the  tax.119  Let  us  look  at  the  arguments, 
which  are  based  throughout  on  the  systematic  element 
in  interpretation.  First  of  all,  the  judge  builds  up  or 
"constructs"  (whether  he  is  right  in  doing  so  or  not  is 
immaterial),  by  bringing  together  a  large  number  of 
provisions  from  the  Bankruptcy  Act  of  1868,  the  rule, 
which  is  not  explicitly  contained  in  this  act,  that  "by 
the  declaration  of  bankruptcy  the  debtor  is  deprived  of 
but  a  part  of  his  power  of  disposal,  and  that  only  for  the 
time  during  which  the  bankruptcy  proceedings  are 
pending.  In  all  other  respects  he  retains  all  rights  and 
duties  in  connection  with  the  estate  just  as  he  had  them 
before  the  declaration  of  bankruptcy."  The  opinion 

«•  We  should  not  fail  to  note  that  this  decision  rested  on  several 
grounds  in  addition  to  the  one  here  discussed.  This  fact,  however,  does 
not  affect  our  argument  because  the  object  of  this  is  not  at  all  to  cast 
doubt  on  the  correctness  of  the  judgment  of  the  VGH  (of  Dec.  30,  1901), 
but  to  study  the  manner  in  which  the  reasons  for  it  are  presented. 


362        WURZEL:  JURIDICAL  THINKING    [Cn.X 

continues:  "Hence  it  follows  that  an  enterprise  belonging 
to  a  joint  stock  company  which  goes  into  bankruptcy 
continues  to  be  an  "enterprise  of  a  joint  stock  company" 
and  must  therefore  be  counted  with  those  which  §  83  of 
the  Personal  Tax  Act  intends  to  subject  to  the  increased 
rate  of  occupation  tax." 

This  deduction  is  considered  as  conclusive.  The  ques- 
tion is  not  even  raised  whether  as  a  matter  of  fact  the 
legislator  of  the  year  1896,  enacting  the  Personal  Tax 
Statute,  had  before  his  mind  the  various  provisions  of  the 
Bankruptcy  Act  of  1868  and  the  rules  "constructed" 
from  them  by  the  ingenuity  of  a  judge,  or  even  whether 
this  legislator  had  any  thorough  knowledge  of  the 
Bankruptcy  Act  at  all.  Nor  will  any  lawyer  criticize  the 
omission  to  raise  this  question,  although  one  would 
necessarily  have  to  investigate  that  question  and  give 
an  affirmative  answer  to  it  if  one  intended  that  the 
"meaning"  of  section  83  of  the  Personal  Tax  Act  was  to 
be  the  actual  meaning  the  actual  legislator  really  con- 
nected with  it.  Juridical  thinking,  however,  impelled 
by  its  tendency  towards  unity,  leaps  over  this  preliminary 
assumption  and  connects  the  premise  directly  with  the 
conclusion.  In  the  very  same  opinion,  however,  we 
may  find  the  proof  that  the  process  just  described  is  by 
no  means  a  matter  of  course,  that  a  different  procedure 
is  logically  possible  and  is  on  occasion  adopted.  Section 
119  of  the  Personal  Tax  Act  provides:  "When  an  enter- 
prise enters  upon  liquidation,  such  act  is  not  to  be  con- 
strued as  a  ceasing  of  the  enterprise,  unless  at  the  same 
time  there  is  a  total  suspension  of  business."  To  this, 
the  trustee  in  bankruptcy  opposed  the  argument  that 
section  119  could  not  apply  to  the  case  at  bar.  For 
according  to  section  133  of  the  Commercial  Code  liquida- 
tion is  possible  only  apart  from  bankruptcy.  Now  sec- 
tion 119  speaks  of  "entering  into  liquidation."  Liquida- 


§18]  THE  TENDENCY  TO  UNITY  363 

tion  and  bankruptcy  being  different  and  even  mutually 
exclusive,  it  follows  that  section  119  had  nothing  to 
do  with  his  case.  To  this  argument  the  court  replies: 
"Plaintiff  in  error  forgets  that  the  Personal  Tax  Act 
was  not  meant  to  be  restricted  to  the  technical  legal 
concept  of  liquidation.  .  .  .  the  Personal  Tax  Act 
was  dealing  with  the  economic  concept"  and  the  case  of 
bankruptcy  was  fully  covered  by  it. 

This  example  is  instructive  also  as  showing  that  at  the 
very  moment  when  one  parts  company  with  empirical 
truth,  as  is  done  here  by  the  artificial  extension  of  the 
mutual  interaction  of  various  concepts  throughout  the 
whole  body  of  the  law,  one  also  runs  the  risk  that  two  or 
more  equally  well-founded  opinions  may  be  opposed  to 
each  other.  For  precisely  the  same  form  of  reasoning 
which  led  the  court  to  find  against  the  trustee  also  might 
have  caused  it  to  find  in  his  favor.  It  could  simply  have 
said:  "The  concept  liquidation,  as  found  in  section  119 
of  the  Personal  Tax  Act,  is  a  technical  legal  concept. 
Its  precise  meaning  must  be  construed  in  accordance 
with  the  Commercial  Code,  which  provides  that  it 
shall  not  include  bankruptcy.  As  a  matter  of  fact, 
however,  when  the  Personal  Tax  Act,  in  its  section  83, 
speaks  of  the  enterprises  of  joint  stock  companies,  it 
contemplates  an  economic,  not  a  technically  legal  one, 
and  everyday  experience  teaches  that  economically, 
even  if  not  juridically,  the  enterprise  of  an  insolvent 
stock  company  is  carried  on  for  the  account  of  the  credi- 
tors and  not  for  that  of  the  company. 

§  19.  The  Conservative  Tendency.  Undoubtedly,  one 
may  gather  a  plenty  of  new  and  realistic  material  for  the 
understanding  of  the  logical  content  and  the  true  inten- 
tion of  a  rule  of  law  by  the  study  of  its  history.  By  doing 
so  he  will  recognize  in  the  rule  either  the  continuation 
of  preexisting  conditions  or  theories  and  the  like,  as  by  a 


364        WURZEL:  JURIDICAL  THINKING    [Cn.X 

reduction  to  writing,  formulation,  codification;  or  a 
conscious  opposition  against  the  existing  law,  resolved 
upon  by  the  legislator.  In  either  case  one  obtains  points 
of  contact  for  the  subsumption  of  the  various  facts  under 
the  actual,  really  ascertained  will  of  the  legislator.  The 
historical  method  fails,  of  course,  where  the  question  is 
regarding  new  phenomena,  or  regarding  social  features 
that  did  not  arise  until  after  the  law  was  made.  Up  to 
that  point,  however,  the  historical  method  may  render 
inestimable  services  for  the  exploration  of  the  actual 
intention  at  the  basis  of  a  rule  of  law. 

The  method  that  first  suggests  itself  for  the  exploration 
of  such  intention  would  be  a  direct  inquiry  into  the  inten- 
tions of  the  persons  who  took  part  in  the  making  of  the 
law.  This  would  be  the  personal  or  individual  side  of  the 
historical  method.  The  doubt,  however,  with  which  legal 
science  regards  it  indicates  in  a  characteristic  manner 
that  the  historical  method  is  not  exclusively  governed 
and  developed  by  the  desire  to  explore  the  empirical,  his- 
toric reality. 

Far  more  effective  is  the  historical  method  on  its  social 
side,  where  it  has  achieved  great  triumphs  especially  by 
investigating  the  origin  of  legal  principles.  This  branch 
of  study  is  devoted  to  elucidating  the  meaning  of  legal 
rules  by  showing  how  they  developed,  which  is  done 
mainly  by  comparing  the  existing  law  with  its  former 
state.  At  once,  however,  another  tendency  inherent 
in  juridical  thinking  becomes  manifest,  to  wit,  its  con- 
servatism. Of  the  two  possibilities  mentioned  at  the 
beginning  of  this  section,  that  of  the  new  rule  being 
opposed  to  the  former  law,  and  that  of  its  being  a  con- 
tinuation of  it,  the  historical  method  of  interpretation 
presumes  the  latter  to  be  the  natural,  regular  case,  while 
the  former  is  the  exception  which  must  be  proven.  The 
historical  method  of  discovering  the  meaning  of  a  law 


§19]        THE  CONSERVATIVE  TENDENCY       365 

presumes  that  the  expressions  of  the  will  of  the  legislator 
are  to  be  construed  as  continuing  the  existing  conditions, 
such  as  the  prevailing  practice,  the  established  relations 
of  social  groups  and  similar  things,120  unless  a  different 
intention  is  actually  manifested.  Much  of  the  excellence 
of  the  historical  method  lies  precisely  in  this.  This  pre- 
sumption is  so  familiar  to  us  that  we  have  difficulty  in 
imagining  another  way  of  proceeding;  and  as  a  matter 
of  fact  it  corresponds  ordinarily,  although  by  no  means 
always,  to  the  actual,  historical  course  of  events.  The 
exception  is  shown,  for  instance,  in  the  case  of  rulers 
inspired  by  the  ideas  of  the  French  Revolution  or  other 
reform  movements.  Their  commands  ought  to  be 
interpreted  historically  far  more  with  a  view  towards 
realizing  the  new  ideas  than  so  as  to  continue  existing 
conditions,  if  the  state  of  mind  actually  at  the  basis  of 
such  laws  is  to  be  the  decisive  criterion.  But  the 
"legislator"  whose  will  is  to  be  discovered  is  not  an 
actual  person  at  all,  and  is  always  conceived  as  conserva- 
tive. The  presumption  is  always  that  his  will  intends 
to  preserve  existing  conditions  to  precisely  the  extent 
that  he  fails  to  express  clearly  an  intention  to  change 
them.  This  is  intelligible  enough  when  one  considers 
the  close  connection  between  the  life  of  the  law  and  the 
State.  The  State,  like  every  great  organization,  cannot 
but  be  essentially  conservative.121 

A  large  portion  of  juridical  tact  consists  in  an  intuitive 
inclination  towards  maintaining  existing  social  conditions. 
That  construction  which  causes  the  least  shock  to  the  old 
tradition  has  in  its  favor,  to  use  an  old-time  expression, 
"fundatam  intentionem."  Whoever  attempts  to  bring 

no  Lawyers,  who  are  ever  tending  to  look  at  the  normative  element 
rather  than  on  the  mere  facts,  are  apt  to  speak,  in  this  connection,  of 
"the  condition  of  the  law."  That,  however,  is  too  narrow;  compare 
supra,  note  55. 

121  See  Spencer,  "Introduction  to  Sociology,"  passim. 


366        WURZEL:   JURIDICAL  THINKING    [CH.X 

about  a  shifting  of  the  existing  relations  of  social  forces 
by  inferences  and  legal  "constructions,"  be  they  ever  so 
plausible,  ordinarily  does  not  think  in  a  lawyer-like 
manner.  At  the  sitting  of  the  German  Reichstag,  on 
May  9,  1884,  Bismarck,  in  order  to  gain  the  majority 
of  the  House  for  his  social  reforms,  attempted  to  prove 
from  certain  legal  provisions  that  the  right  to  employ- 
ment had  been  legally  guaranteed  as  far  back  as  the 
Prussian  Civil  Code.  Now  it  would  hardly  do  to  charge 
a  man  like  Bismarck  with  being  illogical ;  but  it  is  quite 
certain  that  he  did  not  reason  juridically.  The  unjuridi- 
cal  element  is  found  in  the  tremendous  revolution  that 
would  be  produced  by  his  kind  of  interpretation. 

In  a  very  similar  manner  we  might,  without  com- 
mitting an  error  of  logic,  construe  the  provisions  of  the 
Settlement  Act m  so  as  to  bring  about  in  effect  almost  a 
community  of  goods  among  the  members  of  a  commune. 
One  may  say:  "Necessary  maintenance,"  such  as  the 
commune  is  obliged  to  provide  for  its  members  who  are 
unable  to  provide  it  themselves,  means  all  things  neces- 
sary for  the  preservation  of  physical  and  mental  health 
according  to  the  principles  of  modern  hygiene.  This 
principle  is  hardly  contestable  from  the  standpoint  of 
logic.  From  it  one  may  deduce  the  duty  of  communes, 
in  proper  cases,  to  send  their  poorer  members  to  health 
resorts  or  watering  places,  to  see  that  they  get  a  sufficient 
supply  of  meat,  and  similar  things.  Obviously  this  would 
not  be  a  legal  conclusion.  The  un juridical  character 
of  the  reasoning  would  be  found  in  the  necessity  of 
imposing  enormous  burdens  on  the  well-to-do  part  of  the 
population. 

Again,  in  some  cases  it  might  not  be  illogical,  but 
would  certainly  be  unjuridical,  if  one  should  hold  that 
impecuniosity  is  a  ground  of  absolving  a  debtor  from 

"'  Austrian  Settlement  Act  of  Dec.  3,  1863,  §§  22,  24,  25,  26. 


§19]       THE  CONSERVATIVE  TENDENCY         367 

meeting  his  obligations  either  altogether  or  for  a  certain 
period,  on  the  principle  that  "impossibilium  est  nulla 
obligatio." 

In  the  prevailing  state  of  opinion,  however,  regarding 
the  value  of  historical  considerations  for  the  interpreta- 
tion of  legal  rules  it  is  less  necessary  to  dwell  upon  the 
importance  of  conservatism  in  juridical  thinking  than  to 
remind  oneself  that  after  all  the  lawyer  cannot  always 
discover  the  truth  by  looking  backwards.  Leaving 
out  of  account  the  constantly  accruing  mass  of  phenom- 
ena for  which  no  equivalent  can  be  found  in  the  past, 
it  is  still  common  for  the  tendencies  inherent  in  the 
historical  method  to  be  kept  down  by  other  tendencies. 
To  assume  the  contrary  would  imply  a  nation,  or  at 
least  a  judiciary,  that  is  stationary  in  its  development 
and  with  souls  attuned  to  unconditional  submissiveness 
to  tradition.  Where  this  condition  is  lacking,  historical 
inquiry  will  continue  to  explain  the  meaning  of  the  law ; 
but  by  its  revelation  of  the  "human,  all  too  human" 
agitation  which  precedes  the  adoption  of  every  new 
statute  it  will  deprive  the  law  of  the  halo  that  surrounds 
its  clear  commands,  distinguishing  them  from  every 
other  rule  of  life,  no  matter  how  wise,  and  making  it 
appear  in  the  eyes  of  every  good  citizen,  subject,  judge, 
or  official  as  the  expression  of  supreme  authority  and  as 
such  raised  above  all  criticism  and  debate. 

Hence  there  is  always  a  point  beyond  which  the  inter- 
pretation of  a  legal  provision  by  contemplating  the  con- 
ditions of  the  past  must  not  go,  or  the  rule  will  lose  some- 
thing of  its  authoritative  force.  How  much  of  that  which 
lies  behind  the  statute  should  be  considered  in  exploring 
juridical  truth  is  dependent  on  the  prevailing  sense  of 
reverence  for  tradition  and  the  rapidity  with  which  the 
development  of  a  nation  progresses,  but  there  is  always 
a  limit  somewhere.  We  have  already  shown  that  the 


368         WURZEL:  JURIDICAL  THINKING    [CH  X 

individual  or  personal  side  of  historical  investigation  is 
applicable  to  a  small  extent  only,  on  account  of  the  loss 
of  authoritative  power  connected  therewith.  The  same 
effect,  but  to  a  much  less  degree,  is  experienced  also 
from  inquiry  into  the  history  of  principles.  A  distinct 
symptom  of  this  is  the  difference  in  the  readiness  to  use 
this  method,  as  exhibited  by  theoretical  writers  and  the 
practice  of  the  courts.  Comparatively  speaking,  the 
latter  make  conscious  use  of  it  much  more  rarely.  The 
native  domain  of  the  historical  method  is  found  in 
theoretical  treatises. 

This  is  manifestly  because  the  courts  are  much  more 
sensitive  to  the  loss  of  authority  produced  by  giving 
historical  reasons  for  a  decision.  How  would  it  do  for  a 
judge  to  base  his  decision,  for  example,  on  a  criticism  so 
merciless  and  far-reaching  as  that  which  linger  directs 
against  the  Austrian  Civil  Code  in  his  "System  des 
osterreichischen  Privatrechts" ?  To  give  an  illustration: 
Unger  proves,  by  historical  investigation,  that  the  con- 
cept of  "Verjahrung,"  as  defined  in  the  Code,123  is  only  an 
arbitrary  collection  of  various  legal  institutions,  uncon- 
nected by  any  logical  tie,  such  as  limitation  of  actions, 
"usucapio  libertatis,"  non-user  of  servitudes,  adverse 
possession,  and  others.  This  was  based  on  a  misunder- 
standing of  the  term  "praescriptio"  as  used  in  the  Roman 
law.  Hence  Unger  naturally  aims  to  limit  each  of  the 
different  provisions  comprehended  in  this  section  to  the 
field  to  which  it  belongs  historically.  He  specializes  and 
differentiates.  No  matter  how  well  taken  his  criticisms 
may  be,  a  judge  endowed  with  common  sense  is  likely, 
even  if  he  accepts  them,  as  far  as  possible  to  avoid  intro- 
ducing these  historical  arguments  into  his  opinions. 
For  he  could  not  well  characterize  a  valid  statute  as  the 
product  of  error  and  superficiality  without  undermining 

i"OBGB  §1451;     Unger,  "System."   §104. 


§20]  MATERIALS  OF  PROJECTION  369 

the  authority  of  his  own  decree.  Therefore  he  will  in  all 
probability  prefer  some  other  argument,  such  as  one 
based  on  the  systematic  method. 

The  principal  field  of  conscious  historical  investigation 
is  the  history  of  legal  theory,  the  influence  of  which  on 
legal  practice  is  often  no  more  than  indirect.  It  is  true, 
however,  that  in  the  practice  of  the  courts  also  the 
tendency  towards  conservatism  inherent  in  all  juridical 
thinking  does  not  fail  to  show  itself.  It  does  take 
forms  different  from  those  of  conscious  historical  re- 
search. For  instance,  it  becomes  manifested  in  clinging 
to  authorities  and  precedents.124 

V.    THE  SUBJECT-MATTERS  OF  PROJECTION 

§  20.  General  Survey.  Projection  is  not  alone  the 
discovery  of  the  will  of  the  legislator  but  comprises  still 
more.  The  legal  concepts  are  merely  the  points  of  con- 
vergence and  starting,  where  new  phenomena  (phenom- 
ena of  transition)  which  are  not  already  contained  in  the 
original  concept  are  joined  thereto.  The  same  is  true, 
in  even  higher  measure,  of  analogy.  Now  by  what  means 
is  this  connection  made?  Whence  does  the  process  of 
projection  take  the  grounds  for  deciding  whether  a 
transition  phenomenon  ought  to  be  joined  to  one  or  the 
other  concept  akin  to  it?  Clearly  the  grounds  are  not 
to  be  found  in  the  legislative  will;  the  synthetic  char- 
acter of  projection  implies  that  they  must  be  sought  either 
in  experience  or  in  some  emotion  which  deceives  us  regard- 
ing the  existence  of  some  connecting  link  or  renders  us 
willing  to  disregard  it.  All  this  has  already  been  touched 
upon  before,  but  then  it  was  expressly  stated  that  the 
question  what  the  subject-matters  were  with  which 

124  See  Thol,  "Einleitung  in  das  deutsche  Privatrecht,"  §  54,  and 
"Handelsrecht,"  §  14. 


370        WURZEL:   JURIDICAL  THINKING    [CH.X 

projection  had  to  deal  was  still  an  open  one.  Now  that 
question  is  again  presented. 

I  must  confess  that  this  question  will  be  solved  but 
imperfectly  in  this  paper.  To  furnish  a  comolete  solu- 
tion, to  comprehend  logically  the  means  by  which  pro- 
jection, and  for  that  matter  analogy,  proceed,  and  an 
accurate  tracing  of  their  several  varieties,  would  be  one 
of  the  ultimate  goals  of  the  theory  of  juridical  thinking. 
It  would  imply  an  amount  of  positive  labor  in  describing 
and  comparing,  such  as,  on  account  of  the  multifarious- 
ness  of  legal  activities,  must  exceed  by  a  great  deal  the 
limits  set  for  this  paper.  I  shall  limit  myself,  therefore, 
to  designating  in  general  terms  the  principal  fields  of 
social  phenomena  whence  the  subject-matters  of  pro- 
jection are  drawn  to  a  great  extent,  and  to  exploring 
some  of  the  best  denned  ways  by  which  these  phenomena 
enter  into  juridical  thinking  and  affect  its  results. 
Thus  the  possibility  and  existence  of  such  influences 
will  be  illustrated  and  many  a  peculiar  characteristic 
of  juridical  thinking  will  in  addition  be  set  in  a 
clearer  light. 

In  doing  so  I  shall  —  as  was  done  in  the  preceding 
chapter  —  retain  the  dynamical  manner  of  representing 
the  subject,  together  with  a  dynamical  nomenclature. 
That  is,  I  shall  speak  about  forces,  influences  (e.g.  ethical 
influences),  rather  than  about  methods,  premises,  and  the 
like,  for  the  latter  or  logical  terminology  could  not  be 
conceived  without  logical  definitions  and  mutual  delimi- 
tations which  in  some  cases  would  be  premature.  This 
simplification  appears  to  me  all  the  more  justifiable  be- 
cause even  in  those  methods  of  juridical  thinking  which 
are  apparently  elaborated  with  logical  accuracy,  to  wit, 
the  systematic  and  the  historical  methods,  currents  of 
volition  have  crept  in  that  tend  to  push  them  beyond 
the  purely  logical  cognition  of  truth  and  to  make 


§21]  ETHICAL  INFLUENCES  371 

them  appear,  in  part  at  least,  as  being  of  a  purposive 
character. 

§  21.  Relation  Between  Juridical  Thinking  and  Ethical 
Influences.  Jurisprudence  is  primarily  a  normative 
or  teleological  science.125  The  question  jurists  have  to 
answer  is  not  What  is?  but  What  ought  to  be?  While 
in  the  explicative  sciences  the  correctness  of  thinking 
processes  may  at  once  be  tested  by  the  actual  facts, 
all  the  normative  sciences  lack  any  such  standard  of  cor- 
rectness. 

From  the  fact  that  something  does  occur  it  cannot  at 
all  be  inferred  that  it  ought  to  occur.  The  question 
whether  something  ought  to  occur  is  determined  pri- 
marily by  the  strength  of  desire,  i.e.  the  volition  directed 
to  that  end.  In  law,  the  same  question  is  determined  by 
the  authority  enjoyed  by  some  legal  proposition  and  its 
power  of  subordinating  to  itself  the  phenomena  of  life. 
In  the  life  of  the  individual  such  a  direction  of  volition 
assumes  the  form  either  of  a  feeling  or  a  resolution,  but 
whenever  it  becomes  general  and  constant  it  is  more 
properly  called  a  principle  of  valuation.  While  to  the 
physicist,  botanist,  or  astronomer  all  phenomena  are  of 
equal  value  so  that  he  would  never  dream  of  preferring 
one  above  the  other,  the  force  of  social  volition  causes 
a  constant  process  of  valuation  of  phenomena  in  certain 
other  sciences,  so  that  one  phenomenon  is  preferred,  the 
other  rejected  in  one  way  or  the  other.  These  valuations 
have  been  wrought  into  a  number  of  systematic  complexes 
such  as  those  of  morals,  of  manners,  of  fashion,  etiquette, 
forms  of  intercourse,  chivalric  honor,  of  utility  in  several 
varieties,  and  many  more  of  the  same  sort.  These 
valuations  make  up  the  greater  part  of  our  thinking. 
Under  the  influence  of  language  they  proceed  for  the 
most  part  almost  automatically.  Particular  words 

!«  Comp.  however,  supra,  section  2,  and  section  12. 


372        WURZEL:  JURIDICAL  THINKING    [Cn.X 

imply,  in  addition  to  their  logical  content,  their  power 
of  signifying  a  group  of  phenomena,  some  appreciative 
or  deprecatory  valuation  giving  them  a  distinctive 
coloring.  This  part  of  their  meaning  may  also  react  on 
their  logical  content.  According  as  we  are  sensitive  to 
certain  valuations,  we  may  feel  the  same  phenomenon  as 
being  still  within  the  bounds  of  utility  or  beyond  it,  may 
feel  that  it  is  economy,  self-respect',  firmness,  reasonable 
'self-interest,  necessary  protection  of  one's  honor,  sim- 
plicity of  manner,  or  on  the  other  hand  miserliness,  pride, 
stubbornness,  exploitation,  lust  of  revenge,  incivility,  and 
the  like.  We  are  likely  to  draw  consequences  of  the  most 
opposite  kind  from  the  same  facts,  without  becoming 
conscious  that  at  the  very  moment  of  applying  one  signifi- 
cant term  or  the  other  we  were  determined  in  part  by  a 
certain  arbitrariness,  a  function  of  the  direction  of  our 
will,  and  not  simply  by  our  power  of  cognition. 

The  varied  mass  of  value  judgments  of  different  kinds 
is  greatly  affected  by  the  system  of  legal  value  judgments 
although  it  is  by  no  means  absolutely  determined  by  it.126 
That  formulated  rules  of  law  could  possibly  be  applied 
independently  of  other  social  groups  of  value  judgments, 
is  improbable  from  the  very  circumstance  that  like  the 
other  groups  it  is  the  product  of  volition  and  intended  to 
influence  volition,  as  well  as  from  the  fact  that  it  must 
make  use  of  language  —  language,  in  which  so  many 
words,  without  change  in  their  proper  logical  significance, 
may  be  applied  in  so  many  different  ways  according  to 
the  social  valuation  that  goes  along  with  them  as  a 
sort  of  overtone.  The  improbability  becomes  still 
greater  if  we  consider  that  among  these  groups  of  value 
judgments  there  are  some  identical  with  law  in  origin, 
and  so  closely  akin  to  it  in  their  nature  that  very  often  it 
is  quite  impossible  to  draw  a  strict  dividing  line  between 

I"  Comp.  Frenzel,  "Recht  und  Rechtssatze,"  Leipzig  1892,  p.  77. 


§21]  ETHICAL  INFLUENCES  373 

them.  Such  is  especially  the  case  with  the  body  of  value 
judgments  furnished  by  morals. 

The  distinction  between  the  demands  of  law,  morals, 
and  custom,  familiar  though  it  is  to  modern  consciousness, 
is  by  no  means  of  primitive  origin.  With  the  Greeks, 
these  three  methods  of  valuation  were  still  united.  Such 
terms  as  a&xos,  SiWos,  were  applied  equally  to  all 
three.  A/KCUOS  was  the  just  man,  the  man  who  lived 
morally  and  according  to  the  custom  of  the  people. 
Gradually  a  more  compelling  norm  of  life  was  separated 
from  this  all-comprising  custom.  That  was  law,  which 
extended  itself  more  and  more  to  ever  widening  circles 
of  interest  (as  in  very  modern  times  it  has  extended  itself 
to  the  regulation  of  labor),  while  mere  custom  becomes 
more  and  more  confined  to  the  interests  of  the  mind. 

Among  the  Romans,  we  find  this  double  division 
already  clearly  defined.  The  valuation  system  of  the 
law  ("jus,"  "fas")  is  sharply  defined  as  against  other 
norms.  Morals  and  custom,  and  in  part  even  customary 
law,  still  remain  unseparated,  covered  by  the  term 
"mores."  The  triple  division  employed  at  present, 
the  evolution  of  conscious  distinction  of  custom,  which  is 
ethically  indifferent,  by  the  side  of  morals  and  law,  is  a 
recent  product  of  civilization.127 

The  shading  off  of  these  systems  of  valuation  into  each 
other  is  the  consequence  of  their  closely  allied  origins. 
There  have  been  a  good  many  attempts,  and  they  are 
still  being  made,  at  discovering  a  single  criterion  by  which 
rules  of  law  might  be  distinguished  from  moral  and  other 
principles.  First  of  all  it  is  quite  impossible  to  base  such 
criteria  on  substance  or  content,  for  the  substantial  con- 
tents of  all  three  are  to  a  great  extent  identical.  Even 
formal  characteristics  fail  in  part  to  serve  as  distin- 
guishing marks;  such  is  the  case,  for  instance,  with 

127  SeeJhering,  "Zweck  im  Recht";  Wundt,  "Ethik,"  part  i,  ch.  3. 


374         WURZEL:   JURIDICAL  THINKING    [CH.X 

compulsory  force,  or  "absolutely  obligatory  power," 
with  which  rules  of  law  are  said  to  be  armed.  For  even 
mere  moral  rules,  provided  they  refer  to  external  rela- 
tions,128 are  often  protected  by  very  strong  social  pressure, 
while  some  parts  of  law  (international  and  a  good  part 
of  constitutional  law)  lack  the  power  of  compulsion. 
Similarly,  some  moral  commandments,  for  instance 
the  commandment  to  love  one's  parents,  are  at  least  as 
"absolutely  obligatory"  as,  let  us  say,  the  legal  command 
that  one  must  pay  his  taxes.  Frequently  it  is  very  diffi- 
cult to  tell  whether  a  body  of  rules  should  be  classified 
as  belonging  to  law  or  to  morals.  For  instance,  Unger 
denies  that  certain  rights  of  persons  arising  from  the 
family  relation  possess  a  legal  character,  but  relegates 
them  in  his  treatise  to  mere  morals.129  Furthermore 
it  would  be  hard  to  decide  whether  the  duty  of  the 
recipient  of  a  gift,  not  to  return  ingratitude  to  the  giver, 
is  purely  moral  but  may  not  in  some  cases,  such  as  in 
connection  with  the  revocation  of  a  gift,  become  a  legal 
one.  In  cases  of  this  nature  one  may  expect  and  easily 
explain  the  effect  of  ethical  influences  upon  the  process 
of  projection  in  juridical  thinking.  Such  considerations 
are  likely  to  give  directions  to  the  thought,  although  we 
may  not  go  so  far  as  to  demand,  like  some  professed 
teachers  of  ethics,  that  in  the  interpretation  of  law  moral 
considerations  shall  always  have  the  decisive  voice.130 


128 Gam's,  "Encyklopadie"  [vol.  i  of  this  Series],  section  5,  places  the 
line  between  law  and  morals  in  this,  that  the  former  acts  on  external 
relations,  the  other  on  states  of  mind,  or  internal  relations.  [In  this 
form,  the  distinction  attempted  is  hardly  stated  with  accuracy. —  EDS.] 

1M  "System,"  §60. 

>*°  Thus  Wundt,  "Ethik,"  part  iii,  chapter  4:  "The  purpose  of  law 
must  necessarily  be  conceived  as  an  ethical  one.  Although  it  is  not 
customary  to  say  so  expressly  in  formulating  specific  rules,  yet  the  prin- 
ciple is  implied  in  these  rules  that  according  to  general  consent  the  inten- 
tion of  the  law  must  never  be  interpreted  so  as  to  be  in  conflict  with 
general  ethical  standards.  Comp.  also  Savigny,  "System  des  heutigen 


§21]  ETHICAL  INFLUENCES  375 

As  a  matter  of  fact,  such  influences  are  easily  demon- 
strated.131 For  instance,  what  is  known  as  the  extra- 
ordinary mitigation  in  penal  law  in  the  Code  of  1852,132 
was  originally  really  intended  for  extraordinary  cases 
only,  and  the  letter  of  the  statute  so  provides.  Yet  its 
application  has  become  so  common  that  now  it  is  the 
exception  when  the  nominal  penalty  is  imposed.  A 
softening  of  our  moral  conceptions  has  increased  the 
weight  attributed  to  reasons  for  mitigation  of  punish- 
ment. As  a  consequence,  the  concepts  here  in  question 
are  being  projected  much  farther  than  was  intended  by 
the  law  in  1852,  or  rather  in  1803. 

Here  is  a  more  concrete  case :  during  a  heavy  shower, 
A  takes  refuge  in  the  hallway  of  B  and  stays  there  till 
the  worst  of  the  rain  is  over,  notwithstanding  B,  the 
owner,  orders  him  away.  In  all  probability  we  should 
dismiss  an  action  of  trespass  by  B,  on  the  ground  that  the 
facts  lacked  some  element  necessary  to  constitute  the 
cause  of  action  — say  for  instance  the  "unlawfulness"  of 
the  entry.  We  shall  realize,  however,  without  difficulty 
that  one  of  the  effective  motives  of  such  a  judgment  is 
our  deprecation  of  the  unreasonable  harshness  of  B, 
if  we  assume  that  it  was  not  the  hallway  but  the  living 
room  of  B  into  which  A  intruded  from  the  street  and 
which  he  would  not  leave,  although  ordered  to  do  so. 
The  legal  nature  of  the  possession  of  the  living  room  does 

romischen  Rechts,"  section  15,  where  the  object  of  all  law  is  stated  as  the 
realization  of  the  ultimate  end  of  Man  according  to  Christian  ethics. 

"»  I  do  not  mean  to  refer  here  to  the  open  and  conscious  reception  of  a 
system  of  ethical  principles,  or  a  part  thereof,  into  a  legal  code,  such  as 
takes  place  when  the  code  itself  directs  the  judge  to  decide,  to  some  ex- 
tent, according  to  "good  morals"  or  the  like.  Comp.  in  this  connection 
Steinbach  ("Moral  als  Schranke  des  Rechtserwerbs  und  der  Rechts- 
ausiibung").  He  calls  the  influence  of  morals  on  the  administration  of 
justice  merely  negative,  consisting  in  this,  that  "Law  declines  to  lend  its 
compulsory  force  when  it  is  claimed  on  behalf  of  acts  disapproved  by 
Morals." 

'«  OSG  §  54. 


376        WURZEL:  JURIDICAL  THINKING    [Cn.X 

not  differ  from  the  possession  of  the  hallway,  and  yet 
we  should  be  much  more  inclined  to  admit  the  existence 
of  a  cause  of  action.  For  now  another  ethical  motive  is 
thrown  into  the  balance,  to  wit:  the  high  value  placed 
on  the  undisturbed  peace  of  a  man's  home,  and  on  that 
account  we  incline  to  condemn  A  for  not  respecting  B's 
rights,  merely  to  escape  the  annoyance  of  getting  wet. 
Our  change  of  attitude  need  not  imply  complete  con- 
sciousness of  the  ethical  forces  at  work;  in  our  juridical 
thinking  we  may  simply  project  some  conception,  such  as 
the  unlawfulness  of  B's  action,  in  such  a  manner  as  to 
comply  with  the  ethical  consideration. 

Occasionally,  our  ethical  volition  interpolates  an  in- 
dependent premise,  necessary  to  our  conclusion  as  an 
intermediate  link,  because  from  a  moral  standpoint 
we  insist  on  this  intermediate  link.  We  may  assume  it  as 
something  that  goes  without  saying,  or  we  may  not  realize 
at  all  that  we  are  interpolating  it.  Thus,  in  his  treatise133 
Pfaff-Krainz  infers  from  section  166  of  the  Austrian  Civil 
Code,  in  which  illegitimate  children  are  given  a  cause  of 
action  for  maintenance  against  their  parents,  that 
"legitimate  children  also  may  bring  an  action  for  main- 
tenance against  their  parents,"  although  nowhere  does 
the  statute  expressly  give  them  this  right.134  This  form 
of  reasoning  Pfaff-Krainz  designates  "conclusio  &  minori 
ad  majus."  However,  the  concepts  "illegitimate  child- 
ren" and  "legitimate  children"  do  not  bear  to  each  other 
the  relation  of  a  part  to  the  whole.  In  fact  they  do  not 
stand  in  a  relation  of  quantity  at  all,  neither  the  one  nor 
the  other  is  "minus"  or  "majus."  The  conclusion  be- 
comes possible 135  merely  by  the  interposition  of  a  con- 
cealed premise,  let  us  say  this:  "Legitimate  children 

i3»  "System  des  osterreichischen  Privatrechts,"  §  13,  note  6. 
1M  Nor  is  such  express  provision  found  in  section  1220,  OBGB,  which 
is  not  referred  to  by  Pfaff-  Krainz. 

i"  Pfaff-  Hoffmann  ascribe  this  conclusion  to  the  efficacy  of  legal  tact. 


§21]  ETHICAL  INFLUENCES  377 

ought  not  to  have  fewer  rights  than  illegitimate."  This 
would  be  a  premise  originating  in  our  high  ethical  rating 
of  the  institution  of  matrimony.  '  Consequently  the 
power  of  conviction  possessed  by  the  above  conclusion  is 
by  no  means  based  on  its  logical  stringency  but  on  the 
force  of  the  direction  of  our  will  by  means  of  which  we 
place  a  higher  value  on  matrimony  than  on  free  sexual 
intercourse. 

We  may  observe  also  the  influence  of  groups  of  value 
judgments  other  than  those  of  morals,  although  they  are 
considerably  weaker.  For  instance,  to  call  anybody  an 
informer  will  beyond  question  be  considered  slanderous. 
It  will  hardly  be  possible  to  justify  this  view  from  the 
law  alone.  To  "inform"  is  nothing  more  than  to  lay 
before  the  proper  authorities  suspicious  or  unlawful  facts 
one  has  observed.  From  the  point  of  view  of  law  that  is 
a  very  laudable  act  which  in  some  cases  may  be  even 
expressly  enjoined.  Why  do  we  then  project  upon  the 
epithet  "informer"  the  concept  of  "slander,"  or  any  of  the 
concepts  contained  in  the  definition  of  defamation  of 
character?  The  intermediate  premise  is  found  in  the 
traditional  deprecation  of  informing,  which  may  perhaps 
date  back  to  the  days  of  sycophancy  in  antiquity, 
and  is  familiar  to  the  social  system  of  chivalric  point  of 
honor.  It  may  be,  if  this  social  disesteem  should  change, 
that  this  particular  "projection"  will  become  obsolete 
although  the  provisions  of  the  code  may  remain  intact. 

§  22.  Relation  Between  Juridical  Thinking  and  Eco- 
nomic Phenomena.  The  law  stands  in  a  peculiar  rela- 
tion to  the  phenomena  of  economic  life.  On  their  face, 
the  latter  are  nothing  but  the  inert,  dependent  subject- 
matter  which  the  law  rules  and  governs.  The  usual 
point  of  view  of  lawyers  is  that  economic  phenomena, 
such  as  barter,  sale,  money,  commerce,  capital,  are  ruled 
by  law  without  inherent  activity.  Law  determines 


378         WURZEL:   JURIDICAL  THINKING    [CH.X 

what  shall  be  money,  what  is  to  be  the  manner  of  barter 
and  sale,  or  how  commerce  is  to  be  carried  on.  Modern 
social  science  has  the  merit  of  having  demonstrated136 
that  this  appearance  of  the  complete  dependence  of 
economic  phenomena  on  our  ideas  regarding  the  law 
is  in  accordance  with  truth  only  to  a  limited  extent. 
In  all  other  cases,  however,  it  is  deceptive,  and  the 
reverse  is  true.  The  economic  factor  is  for  the  most  part 
the  more  powerful.  Legal  rules  are  frequently,  or  accord- 
ing to  the  materialistic  school  constantly,  nothing  more 
than  the  sanction  or  expression  of  a  particular  form  of 
social  structure,  and  especially  of  the  conditions  under 
which  production  is  carried  on.  Barter,  sale,  commerce, 
the  circulation  of  money,  would  not  cease  to  go  on  in 
forms  similar  to  present  ones,  even  if  suddenly  all  laws 
regulating  them  were  repealed.  Legal  science  also  has 
recognized  that  even  those  legal  rules  which  at  first 
glance  have  nothing  at  all  to  do  with  economic  matters, 
conceal  a  kernel  composed  of  some  economic  interest  of 
the  people  or  a  portion  of  the  people.137  This  interest 
may  often  assume  shapes  difficult  of  recognition,  but  the 
legal  rule  draws  its  life  from  the  value  and  importance 
of  such  interest.  This  connection  is  commonly  acknowl- 
edged when  there  is  a  question  of  adopting  some  rule, 

"•  How  completely  an  understanding  was  formerly  lacking  of  any 
connection  between  law  and  other  sides  of  social  life,  appears,  i.a.,  from 
the  following  in  Voltaire's  "Traite  de  metaphysique"  (1786  ed.  of  works, 
vol.  32,  p.  68:  "La  plupart  des  lois  se  cpntrarient  si  visiblement,  qu'il 
importe  assez  peu  par  quelles  lois  un  Etat  se  gouverne;  mais  ce  qui 
importe  beaucoup  c'est  que  les  lois  une  fois  etablies  3oient  executees. 
Ainsi  il  n'est  d'aucune  consequence  qu'il  y  ait  telles  ou  telles  regies 
pour  les  jeux  de  cartes;  mais  onne  pourra  jouer  un  seul  moment,  si  Ton 
ne  suit  pas  a  la  rigueur  ces  regies  arbitraires  dont  on  sera  convenu." 
Against  this,  the  editor  of  Voltaire  protests  by  producing  this  argument 
drawn  from  the  law  of  nature:  "Nous  croyons  au  contraire  qu'il  ne  doit 
y  avoir  presque  rien  d'arbitraire  dans  les  lois.  La  raison  suffit  pour  nous 
faire  connaitre  les  droits  des  hommes." 

u*  For  instance,  the  maxim  "ignorantia  juris  nocet";  or  the  principle 
of  procedure  that  parties  must  carry  on  their  own  actions.  Comp. 
Menger,  "Das  biirgerliche  Recht  und  die  besitzlosen  Klassen." 


§22]  ECONOMIC  FACTORS  379 

but  disregarded  when  a  rule  is  to  be  interpreted.  Yet 
there  seems  to  be  no  doubt  that  the  influence  of  economic 
conditions  is  exerted  strongly  in  the  interpretation  of 
formulated  law  also.  Especially  is  there  a  tendency, 
analogous  to  that  already  treated  in  an  earlier  section, 
to  maintain  relations  of  economic  power  intact,  to  resist 
needless  changes.  Hence  projection  is  kept,  as  far  as 
possible,  within  lines  drawn  by  the  economic  structure 
of  society. 

This  is  a  tendency  which  has  been  recognized  in  part 
in  a  number  of  formulated  rules  of  law,  e.g.  in  §915,  line  1, 
of  the  Austrian  Civil  Code.  It  is  also  at  the  bottom  of  the 
"safety-valve  concept"  known  as  "causa,"  which  will  be 
touched  upon  below.  It  may  also  be  demonstrated  to 
exist  elsewhere,  although  usually  it  is  concealed  in  an 
extraordinary  manner.  Let  us  look  at  a  few  more 
examples : 

An  Austrian  Civil  Code  section138  provides:  "A  cus- 
tom workman  or  contractor  must  not  relet  the  work 
ordered  to  be  done  to  some  other  person  except  in  cases  of 
emergency,  and  even  in  the  latter  case  he  remains  re- 
sponsible for  any  negligence  in  the  selection  of  such 
person."  This  provision,  in  its  primary  sense,  does 
not  harmonize  with  the  economic  structure  of  modern 
society.  It  ignores  the  unity  of  economic  enterprises, 
such  as  a  factory,  it  puts  obstacles  in  the  way  of  dealing 
with  such  enterprises,  and  thereby  jeopardizes  the  bene- 
fits of  the  division  of  economic  labor.  In  practice,  these 
disadvantages  have  been  consciously  recognized,  and 
the  meaning  of  the  provision  is  being  narrowed  as  much 
as  possible.  Especially  has  it  been  construed  in  such  a 
manner  that  the  assistants  of  the  contractor,  his  work- 
men, journeymen,  and  helpers,  are  not  considered  persons 
different  from  himself,  they  are  not  "other  persons" 

§1161. 


380        WURZEL:  JURIDICAL  THINKING    [Cn.X 

within  the  meaning  of  the  statute,  the  acts  of  the  assist- 
ants "are  to  be  taken,  in  law,  as  the  acts  of  the  contractor, 
so  far  as  they  relate  to  his  dealings  with  the  customer." 
This  is  justified  because  the  contractor  has  taken 
part  in  the  transaction  taken  as  a  whole.139  One  will 
scarcely  deny  that  such  is  not  the  natural,  nor  probably 
the  historical,  meaning  of  the  provision ;  and  if  the  authors 
of  the  Austrian  Civil  Code  had  really  thought  of  these 
distinctions  and  intended  to  draw  them,  they  would  no 
doubt  have  indicated  that  fact  in  some  manner.  The 
case  makes  clear,  however,  how  "interpretation"  adapts 
itself  to  the  lines  drawn  by  the  economic  structure  of 
society.  It  shows  also  that  the  real  reason  for  the 
narrow  construction  mentioned  above  is  to  be  found  in 
such  adaptation  and  not  in  the  recognition  of  some 
positive  intention  of  the  legislator. 

According  to  Stubenrauch's  Commentary140  section 
440  does  not  presume  that  the  purchaser  of  real  property, 
when  he  causes  a  record  of  conveyance  to  be  made,  has 
no  knowledge  of  a  prior  conveyance  to  another.  This 
proposition  is  still  generally  disputed.  In  the  practice 
of  certain  crown  lands  and  districts,  notably  that  of 
Galicia,  the  opposite  is  established  beyond  every  possible 
dispute,  contrary  to  that  interpretation  of  §  440  which  is 
historically  the  most  plausible  and  which  has  been 
accepted  by  Stubenrauch.  Why  is  that?  In  the  crown 
lands  and  districts  in  question  the  registered  records  of 
title  are  not  in  good  order,  very  often  the  actual  condition 
of  the  title  does  not  appear  from  the  records,141  and  on 

w  See  Stubenrauch,  "Kommentar"  zu  §  1161;   Civil  Code  §  1313. 

"°  Edition  of  1908.  "Kommentar"  zu  §440.  This  section  reads: 
"Where  the  owner  grants  the  same  real  property  to  two  persons,  it 
becomes  the  property  of  him  who  has  first  applied  for  the  registration  of 
title." 

"i  Many  owners  of  actually  divided  parcels  of  land  are  registered 
merely  as  coowners  of  larger  undivided  tracts. 


§22]  ECONOMIC  FACTORS  381 

account  of  these  discrepancies  a  strict  adherence  to  the 
record  would  produce  changes  in  the  title  for  which, 
from  the  standpoint  of  economic  fact,  there  would  be  no 
justification.  A  vivid  realization  of  these  conditions  and 
an  intention  to  prevent  such  changes  are  obviously  forces 
sufficient  to  render  an  acceptance  of  Stubenrauch's 
construction  utterly  impracticable.142 

According  to  a  decision  of  the  Supreme  Court,143  the 
lessor  is  not  guilty  of  a  disturbance  of  quiet  enjoyment 
of  the  premises  leased,  where,  in  order  to  protect  his  lien 
upon  the  chattels  found  on  the  premises,  he  prevents  the 
lessee  from  removing  his  furniture  from  the  premises; 
and  this  is  so  even  if  the  rent  is  not  yet  due,  for  he  possesses 
a  lien,  and  his  act  is  not  unlawful.  It  is  true  that  this 
decision  goes  pretty  far,  yet  it  will  probably  be  generally 
recognized  as  good  law;  for  ordinarily  the  premature 
removal  of  the  furniture  is  likely  to  have  no  purpose  but 
that  of  cheating  the  lessor  out  of  his  rent.  If,  however, 
we  were  to  imagine  the  lessor  of  a  farm  preventing  his 
tenant  from  selling  the  crop  and  removing  it  for  that 
purpose,  we  should  undoubtedly  find  against  him, 
although  the  same  sort  of  lien  provided  by  §  1101,  Civil 
Code,  would  apply  here  also.  The  difference,  however, 
is  found  in  the  economic  relation.  In  tenant-farming 
it  is  the  normal  course  for  the  tenant  to  pay  the  rent  out 
of  the  proceeds  of  the  crops  sold.  The  court  will  avoid  a 
disturbance  of  the  normal  course  of  an  economic  process. 
Now  the  different  treatment  of  this  case  would  take  the 
form  of  a  different  projection  of  the  term  "unlawful." 
Beyond  doubt  we  should  find  this  necessary  element  of 

"*  In  this  form,  the  rule  implies  a  presumption  that  the  person  first 
registering  was  the  dishonest  one.  That,  however,  is  a  "petitio  principii," 
for  the  question  is  still  to  be  decided  whether  the  first,  or  physical,  new 
owner,  or  the  new  record  owner  has  the  better  right,  and  consequently 
whose  acts  are  unlawfully  injurious  to  the  other. 

i43-Gerichts-Urteil  459,  neue  Folge,  Jan.  3,  1899. 


382         WURZEL:  JURIDICAL  THINKING    [Cn.X 

disturbance  of  quiet  enjoyment  present  in  the  case  of  the 
lessor  of  a  farm,  as  we  should  in  the  case  of  the  lessor 
of  a  store  who  should  take  it  into  his  head  to  keep  his 
lessee  from  selling  his  goods. 

It  is  interesting  to  note  that  the  courts  located  in  com- 
mercial centers  are  somewhat  stricter  than  those  in 
country  districts,  in  enforcing  the  principles  of  the 
Commercial  Code  regarding  the  duties  of  vendees  assert- 
ing claims  for  defects  in  merchandise  delivered  where  the 
sale  was  effected  at  long  range. 

A  landowner  had  applied  to  the  credit  institute  at 
Z.  for  a  loan  of  20,000  crowns  at  6  per  cent  for  three 
years  on  first  mortgage  upon  his  farm,  and  the  applica- 
tion had  been  accepted.  In  the  meantime  the  current 
rate  of  interest  had  fallen,  and  he  succeeded  in  obtaining 
the  principal  elsewhere  at  5  per  cent.  He  notified  the 
credit  institute  at  once  that  he  would  not  need  the  loan 
and  released- the  bank  from  its  agreement.  The  manage- 
ment replied  that  he  was  under  obligation  to  take  the 
loan  at  6  per  cent.  We  may  assume  that  the  decision  of 
this  issue  will  depend  on  whether  the  "apparent  purpose" 
of  this  loan,  at  the  time  when  the  preliminary  agreement 
"de  mutuo  dando  (vel  accipiendo?)"  was  made,  could  no 
longer  be  accomplished  on  account  of  a  change  in  the 
surrounding  circumstances  ("clausula  de  rebus  sic 
stantibus");  or  perhaps  generally  on  what  the  legal 
nature  of  that  application  for  a  loan  may  be.  Who 
could  fail  to  see  that  an  important  factor  in  coming  to  a 
decision  will  be  the  notion  we  have  of  the  economic 
nature  of  a  credit  institute?  The  more  we  keep  our  eye 
on  its  economic  function  of  providing  and  cheapening 
credits,  the  more  shall  we  be  inclined  to  deprecate  an 
attempt  to  force  anybody  into  accepting  a  loan.  We 
shall  then  hold  that  it  was  the  intention  of  the  parties 
to  give  the  landowner  an  opportunity  to  obtain  capital 


§22]  ECONOMIC  FACTORS  383 

cheaply,  and  that  this  purpose  could  no  longer  be  ac- 
complished after  the  circumstances  had  changed.  How- 
ever, we  shall  be  inclined  to  decide  the  opposite  way  the 
more  we  look  upon  a  credit  institute,  from  the  point  of 
view  of  private  economics,  as  a  legal  person  having  for  its 
purpose  private  gain;  and  we  shall  do  so  still  more  if 
we  allow  ethical  considerations  to  influence  us,  as  for 
instance  in  a  case  where  there  is,  instead  of  the  credit 
institute,  a  woman  without  business  experience,  who 
was  delighted  to  accept  the  offer  of  the  landowner 
because  thereby  she  was  relieved  of  the  necessity  of 
finding  an  investment  for  her  capital. 

The  formal  method,  however,  by  which  these  economic 
considerations,  or  rather  the  value  judgments  relating 
thereto,  creep  into  our  decision,  although  we  may  never 
become  conscious  of  the  reasons  therefor,  will  be  found 
in  the  projection  of  the  concept  "purpose  of  the  prelim- 
inary agreement"  upon  these  considerations  during  the 
process  of  ascertaining  the  intention  of  the  parties. 

There  is  still  another  separate  point  to  be  mentioned 
here.  We  have  already  spoken  above  about  the  close 
connection  of  law  with  the  organization  of  the  State. 
In  the  name  of  the  State  legal  rules  are  formulated ; 
it  is  the  State  that  administers  the  law  through  its  agents. 
This  being  their  mutual  relation,  we  cannot  conceive 
that  it  would  ever  become  necessary  by  reason  of  a  defec- 
tive formulation  to  apply  a  legal  rule  in  such  a  manner  as 
to  work  injury  to  the  vital  interests  of  the  State  itself. 
Yet  that  might  happen  quite  easily  on  the  strength  of 
mere  logical  deductions  without  regard  to  this  danger. 
Rather,  it  would  seem  that  even  without  an  explicit 
provision  to  that  effect  there  is  an  inherent  presumption 
in  every  formulated  rule  of  law  that  it  will  not  injure  the 
State  itself.  As  a  matter  of  fact  we  can  see  that 
the  conditions  of  life -within  the  State  are  taken  into 


384         WURZEL:   JURIDICAL  THINKING    [CH.X 

consideration,  even  in  private  law  where  there  is  the 
least  necessity  of  fearing  this  danger.144 

§  23.  The  Place  of  the  Subject- Matters  of  Projection 
in  the  Classification  of  the  Entire  Subject- Matter  of  Juridical 
Thinking  into  Facts  and  Rules.  A  few  very  simple  truths 145 
compose  the  kernel  of  the  observations  made  above. 
Juridical  thinking,  in  so  far  as  it  is  not  simply  the  dis- 
covery of  an  actual  intention,  expressed  in  the  rules  of 
law,  together  with  the  subsumption  of  facts  under  this 
intention,  has  for  its  object  the  connection  of  facts  and 
rules,  by  projection  and  analogy.  In  doing  so  it  employs, 
or  is  influenced  by,  general  social  phenomena,  in  brief, 
the  entire  fabric  of  society.146  As  a  consequence,  the  same 
legal  rule,  without  an  alteration  of  its  formal  validity 
or  its  logical  content,  may,  when  there  has  been  a  change 
in  social  structure,  be  projected  sometimes  further, 
sometimes  less  far,  without  doing  violence  to  our  sense 
of  justice. 

Those  influences  operating  on  the  social  structure  may 
be  exerted  in  a  great  variety  of  ways:  by  means  of 
niceties  of  speech,  by  intermediate  premises  appearing 
self-evident  and  consequently  often  not  even  entering 
into  consciousness,  by  means  of  value  judgments  and 
tendencies  of  volition,  etc.  There  is  finally  such  an 
influence  by  means  of  the  discovery  of  internal  facts, 
about  which  we  shall  have  more  to  say  below. 

It  would  be  a  very  instructive  experiment  if  one  could 
allow  some  person  of  eminent  logical  and  juridical  gifts 

"«  Comp.  Decision  of  Jan.  4,  1899  (GU  446,  new  series) :  There  can 
be  no  execution  against  the  State,  merely  because  the  judgment  was  not 
paid  before  the  expiration  of  the  statutory  term  of  fourteen  days. 

"«  Please  not  to  overlook  that  they  apply  only  within  certain  limits, 
otherwise  this  statement  will  sound  far  too  radical.  See  infra,  section  26. 

»•  If  I  were  to  exaggerate  the  dynamic  form  of  expression  into  actual 
metaphor,  I  might  say:  It  moves  in  the  direction  of  least  resistance 
on  the  line  produced  by  the  authority  of  the  legal  rule  and  these  social 
forces. 


§23]  FACTS  AND  RULES  385 

but  quite  unfamiliar  with  our  form  of  civilization,  say 
for  instance  a  Chinaman,  to  render  decisions  in  accord- 
ance with  our  laws.  The  astonishing  judgments  at  which 
he  would  arrive  would  constitute  a  "demonstratio  ad 
oculos"  of  the  extent  to  which  a  judge's  subjective 
attitude  towards  the  life  of  society  contributes  a  third 
factor  to  the  judgments  he  renders,  by  the  side  of  the 
logical  contents  of  legal  rules  and  in  addition  to  the 
various  facts  to  be  subsumed.  I  speak  of  a  third  factor 
in  order  to  indicate  that  I  consider  the  subject-matters  of 
projection  neither  as  facts  nor  as  rules.  That  they  are 
not  rules  would  seem  to  be  self-evident.  The  question  of 
their  proper  classification  is  of  importance,  however,  not 
merely  from  the  standpoint  of  logical  completeness; 
it  actually  supplies  the  keystone  without  which  our 
entire  argument  might  tumble  into  ruin. 

That  is  so  because,  if  we  could  represent  ethical,  eco- 
nomic, and  other  ideas  at  work  in  the  mind  of  the  judge 
as  mere  knowledge  of  facts  (let  us  say  facts  of  which 
judicial  notice  is  taken),  or  as  nothing  but  experience, 
then  one  could  not  conceive  of  a  difference  between 
projection  and  subsumption.  Take  the  most  pronounced 
case  of  projection,  one  in  which  the  same  rule  of  law 
is  sometimes  projected  upon  the  same  state  of  facts  and 
sometimes  not.  This  one  might  try  to  explain  in  this 
way:  Every  fact  is  to  be  understood  in  connection 
with  the  whole  remaining  world  of  facts.  If  this  environ- 
ment of  facts,  e.g.  economic  conditions  or  the  ethical 
attitude  of  society,  is  changed,  then  a  fact  (such  as  an 
act  or  a  thing),  although  apparently  identical,  has  also 
become  different,  because  it  now  has  an  entirely  different 
relation  to  the  surrounding  circumstances.  It  is  therefore 
quite  possible  for  it  to  be  subsumed  at  one  time  and  not 
to  be  subsumed  at  another,  without  the  necessity  of 
calling  to  one's  aid  some  special  conception  such  as 


386         WURZEL:   JURIDICAL  THINKING    [Cn.X 

projection.  Before  drawing  general  conclusions,  let  us 
look  at  some  illustrations  of  this  manner  of  understanding 
the  subject. 

A  landlord  forbids  a  friend  of  his  tenant,  who  has 
treated  him  rudely,  to  enter  the  premises.  Must  the 
tenant  submit  to  this?147  Any  lawyer  will  answer  with  a 
decided  negative.  Jhering  inquires  further:  "Does  it 
make  a  difference  in  this  respect  what  sort  of  person  the 
third  party  is?  Suppose,  for  instance,  that  it  is  a  lewd 
woman."  Now  a  lawyer  will  be  a  little  more  inclined 
to  find  in  favor  of  the  landlord.  He  may  consider  that 
the  landlord's  house  would  gain  a  bad  reputation  if 
lewd  wromen  were  permitted  to  frequent  it;  he  might 
suffer  damage  thereby,  and  such  use  of  the  premises 
would  be  an  abuse  contrary  to  the  true  intention  of  the 
contract  of  lease. 

If  this  line  of  argument  should  prove  sufficient  to 
convince  the  court,  it  would  be,  according  to  the  views 
defended  here,  a  case  where  the  ethical  notions  of  the 
judge  had  caused  him  to  place  a  different  valuation  on 
certain  facts  and  consequently  to  find  a  different  condition 
of  certain  internal  facts  constituting  the  intention  of  the 
parties.  However,  one  might  deny  this  and  assert  that 
the  reason  on  which  the  judgment  is  based,  to  wit,  the 
injurious  abuse,  is  simply  the  finding  of  facts  of  which 
the  court  will  take  judicial  notice.  That  this  is  not  the 
correct  view  of  the  matter  will  appear  at  once  if  (leaving 
as;de  any  difficulties  that  might  arise  in  a  case  where  the 
example  were  drawn  from  economic  considerations)  we 
assume  that  the  tenant  takes  issue  upon  the  facts. 
Suppose  he  should  undertake  to  prove  that  the  people 
of  his  town  have  no  qualms  about  such  ethical  points, 
that  they  are  quite  obtuse  regarding  intercourse  with  pro- 
stitutes, and  that  the  landlord  will  not  only  not  suffer 

n'  From  Jhering,  "Jurisprudenz  des  taglichen  Lebens,"  page  33. 


§23]  FACTS  AND  RULES  387 

damage  but  will  rather  be  able  to  get  higher  rent  for  his 
premises.  Now  surely  there  is  no  doubt  that  the  court 
will  have  to  reject  the  offer  of  such  evidence,  although 
possibly  it  may  well  be  in  accordance  with  the  truth. 
It  will  reject  it,  because  the  reason  on  which  its  judgment 
is  based  is  something  more  than  a  mere  ascertainment 
of  facts.  It  flows  from  an  ethical  volition,  from  the  ethical 
attitude  of  the  judge,  and  the  tenant's  offer  of  proof  is  in- 
tended merely  to  disprove  a  certain  state  of  fact,  but 
implies  an  insurrection  against  prevailing  moral  principles 
which  it  is  the  duty  of  the  court  to  defend.  Nor  would  a 
court  receive  evidence  for  or  against  the  proposition  that 
the  charge  of  being  an  informer  actually  does  lessen  the 
esteem  in  which  the  plaintiff  is  held  among  his  associates. 
The  body  of  ideas  regarding  reputation  which  prevails 
in  society  simply  postulates  that  such  is  the  case, 
and  the  lessening  of  a  man's  reputation  when  he  has 
turned  informer  is  not  merely  a  fact,  it  is  also  a  moral 
principle. 

In  some  cases,  for  example  that  of  the  support  of 
illegitimate  children  referred  to  in  an  earlier  section,148 
it  will  turn  out  quite  impossible  to  represent  the  influence 
of  ethical  considerations  in  the  form  of  a  question  of 
fact.  It  will  always  remain  purely  a  "norm"  or  expres- 
sion of  volition. 

Economic  influences  are  much  more  closely  allied  to 
pure  facts  and  therefore  more  difficult  to  distinguish. 
The  court  will  properly  treat  many  phenomena  of 
economic  life  simply  as  facts,  indifferent  as  far  as  his 
mental  operations  are  concerned.  This  is  true,  for 
instance,  of  all  the  several  economic  phenomena  that 
make  up  the  state  of  facts  in  each  specific  case,  including 
such  things  as  the  making  of  a  loan,  payment,  and  the 
like.  In  so  far,  however,  as  such  phenomena  are  of  a 

"«  §  21  supra. 


388         WURZEL:   JURIDICAL  THINKING    [CH.X 

more  generally  social  nature,  being  a  part  of  the  fabric 
of  the  social  body,  it  is  frequently  different,  and  it  is  this 
class  of  economic  phenomena  alone  which  we  have  in 
mind  at  present.  In  these  we  find  for  the  most  part  the 
mingling  of  a  factor  of  volition,  of  a  value  judgment, 
although  this  is  true  to  a  much  less  degree  than  in  the  case 
of  ethical  phenomena.  The  reason  for  this  must  be  found 
in  a  disinclination  to  lose  that  which  forms,  as  a  matter 
of  fact,  the  basis  of  social  life.  Unless  he  finds  himself 
compelled  to  do  otherwise,  a  judge  will  hesitate  to  bring 
about  important  changes  in  that  basis  by  his  judgment. 
In  brief,  the  reason  lies  in  the  conservative  tendency  of 
juridical  thinking. 

From  the  circumstance  that  the  land  in  some  country 
is  held  in  some  particular  manner,  one  cannot  of  itself 
draw  a  conclusion  regarding  the  way  in  which  it  ought 
to  be  held.  Yet  a  judge  will  incline  as  much  as  possible 
to  maintain  the  existing  condition;  he  values  that  con- 
dition more  highly  than  any  change. 

From  the  circumstance  that  all  bathing  establishments 
or  factories  are  provided  with  a  certain  safety  appliance, 
with  the  exception  of  one  establishment  in  which  it  is 
absent,  one  cannot  draw  a  conclusion  regarding  what 
ought  to  be,  and  yet  there  will  be  an  inclination  to  im- 
pose a  duty  of  providing  the  appliance  in  some  such  way 
as  holding  that  its  absence  constitutes  negligence  in 
case  of  an  accident. 

The  fact  that  a  mortgage  debt  ordinarily  has  some 
economic  relation  to  the  value  of  the  mortgaged  estate 
(in  this  way,  for  instance,  that  the  loan  is  commonly 
proportionate  to  the  value  of  the  land,  and  is  repaid  out 
of  the  income)  is  of  itself  a  fact  quite  indifferent  from  the 
standpoint  of  what  ought  to  be.  Nevertheless  the  courts 
are  inclined  to  maintain  this  relation,  and  for  that  purpose 
will  hold,  even  without  express  statutory  provision, 


§23]  FACTS  AND  RULES  389 

that  the  lien  covers  the  insurance  money  received  after 
a  fire.149 

Recognizing  that  a  mortgagee,  in  making  a  loan, 
ordinarily  takes  into  account  the  value  of  the  estate, 
and  where  there  are  prior  mortgages  the  value  of  what  is 
left  after  these  have  been  paid,  Exner  takes  the  posi- 
tion in  his  treatise  15°  that  subsequent  mortgage  holders 
have,  not  a  right,  but  only  a  possibility  of  being  ad- 
vanced when  the  prior  mortgage  has  been  extinguished. 
There  is  nothing  to  this  effect  in  the  statute.  From  this 
proposition,  however,  Exner  draws  a  good  many  con- 
sequences regarding  questions  in  the  law  of  mortgages. 
The  basis  and  convincing  power  of  his  arguments  are 
found  exclusively  in  his  consideration  of  certain  economic 
processes  and  the  desire  of  the  author  to  keep  these 
intact. 

However,  economic  subject-matters  of  projection 
cannot  be  considered  simply  as  facts  judicially  noticed, 
for  further  reasons  in  addition  to  the  fact  that  they  are 
interwoven  with  volitional  elements.  These  are  apt  to 
be  rather  feeble  anyhow. 

Almost  always,  these  economic  subject-matters  are 
concealed  under  the  form  of  value  judgments  the  origin 
of  which  does  not  enter  consciousness.  Or  they  may 
appear  as  intermediate  premises  with  the  appearance 
of  being  self-evident.  As  a  consequence  they  are  not 
ordinarily  expressly  referred  to  in  the  opinions  of  judges. 

Furthermore,  they  are  apt  to  be  of  a  somewhat  general 
nature  and  the  degree  of  certainty  is  much  less  than  that 
involved  in  the  concept  of  an  established  fact.  They  are 
commonly  opinions  rather  than  assertions  of  fact.  For 
this  reason  courts  of  appeal  will  consider  not  only  the 

i<»  Stubenrauch,  "Kommentar"  zu  section  457,  OBGB.  section  633 
ibid,  note  3,  and  citations. 

lso  "Hypothekenrecht,"  §90. 


390         WURZEL:  JURIDICAL  THINKING    [CH.X 

conclusions  to  be  drawn  from  them,  but  in  cases  where 
they  have  been  made  part  of  the  record,  even  their  exist- 
ence. In  fact,  it  is  a  regular  part  of  the  function  of  the 
courts  of  last  resort  to  inquire  into  them ;  that  is  part  of 
their  duty  to  pass  on  the  law  of  the  case. 

Thus  it  appears  that  the  question  implied  in  the  title 
of  this  section,  as  well  as  the  problem  raised  above, 
at  the  close  of  section  12,  may  be  answered  as  follows: 
There  is  no  sharply  defined  boundary  between  the  prin- 
ciples applied  by  the  lawyer  and  the  facts  to  which  he 
applies  them.  Proceeding  from  the  province  of  pure 
facts  beyond  the  field  of  facts  judicially  noticed,  we  come 
to  views  or  opinions  regarding  general  matters  of  fact. 
These  are  more  or  less  definite,  more  or  less  permeated 
with  the  will  to  maintain  them  as  actual  facts.  Next 
we  meet  with  occurrences  the  reality  of  which  we  postu- 
late from  the  point  of  view  of  society,  and  which  we 
therefore  are  compelled  to  assume  as  true;  or  we  find 
facts  the  existence  of  which  we  take  for  self-evident 
because  we  thus  postulate  them.  Finally,  we  have  pure 
"norms"  or  rules,  prescribing  that  certain  facts  shall  be 
conclusively  presumed.  These  determine  our  judgment 
without  regard  to  the  question  whether  the  facts  so 
prescribed  or  postulated  really  exist  or  not. 

Both  the  recognition  of  pure  "norms"  or  legal  rules,  in 
other  words  interpretation,  and  the  consideration, 
recognition,  and  valuation  of  the  entire  transition  zone 
(that  is,  the  ideas  composed  of  a  mixture  of  actual  facts 
and  postulated  notions,  as  they  exist  in  the  conception 
the  lawyer  has  formed  of  the  social  world),  are  parts  of 
the  process  of  arriving  at  a  "legal  judgment,"  or  of  juridi- 
cal thinking.151  Most  of  the  great  variety  of  ideas 

"i  In  addition,  there  are  some  others,  such  as  real  conclusions  of  pure 
logic  (e.g.  deductions,  calculations,  etc.).  certain  discretionary  pro- 
visions, in  part  also  the  ascertaining  of  "internal  facts,"  so-called.  Re- 
garding the  latter,  see  infra,  §  25. 


§24]  ANALOGY  391 

expressed  in  the  opinions  of  courts  of  last  resort,  if  they 
are  not  interpretation  of  the  logical  content  of  a  legal 
rule  nor  declaration  of  facts,  belong  to  this  transition 
zone. 

VI.    VARIOUS  SPECIAL  SUBJECTS 

§  24.  The  Analogy  of  Particular  Legal  Rules.  The 
reader  who  has  followed  me  up  to  this  point  will  very 
likely  take  for  self-evident  the  conclusion  I  shall  draw 
regarding  a  certain  rule  of  interpretation  which  is  about 
the  only  one  so  far  established  that  has  any  life  in  it. 

The  maxim  that  a  particular  rule  is  not  to  be  extended 
beyond  its  original  meaning,  or  is  not  to  be  used,  as 
Jhering  says,  as  a  productive  principle  (or  to  use  a  brief 
technical  expression,  is  not  to  be  applied  by  analogy), 
cannot  be  justified  if  taken  by  itself.  At  least,  it  is  not 
a  necessary  form  of  thinking,  as  is  so  commonly  asserted. 
Where  a  rule  of  law  is  inconsistent  with  a  number  of 
others  and  it  is  shown  by  its  logical  nature  that  it  is  a 
particular  rule,  it  may  be  highly  probable  that  what  we 
may  call  its  sphere  of  attraction,  or  its  field  of  projection, 
is  correspondingly  narrower;  but  of  itself  it  does  not 
follow  that  it  may  not  be  applied  beyond  the  field  covered 
by  its  original  logical  content.  In  accordance  with  our 
positivistic  point  of  view,  we  may  find  the  most  import- 
ant reason  why  we  believe  that  even  particular  rules  may 
be  extended  by  analogy,  in  the  fact  that  this  is  actually 
being  done. 

Let  us  look  at  some  instances  of  this.  Sections  367 
and  456,  Austrian  Civil  Code,  provide  that  the  purchaser 
of  a  chattel,  acting  in  good  faith,  acquires  the  ownership 
or  right  of  possession  even  where  his  vendor  had  no  title 
but  was  a  mere  bailee  of  the  real  owner.  This  is  an  ex- 
ception from  the  general  principle  that  rights  in  material 
things  are  absolute,  and  from  the  maxim  "nemo  plus 


392        WURZEL:   JURIDICAL  THINKING    [CH.X 

juris  transferre  potest  quam  ipse  habet"  (see  section  442, 
Austriart  Civil  Code).  These  provisions  do  not  cover  a 
case  where  a  pledgee  bails  the  chattel  pledged  to  his  debtor 
or  to  a  third  party,  and  the  latter  sells  it  without  giving 
notice  of  the  lien.  Will  the  bon&  fide  purchaser  be  com- 
pelled to  submit  to  the  rights  of  the  pledgor,  when  these 
afterwards  come  to  the  light?  We  believe  that  the 
correct  answer  would  be  in  the  negative,  ,and  if  so  we 
should  extend  the  above  particular  provisions  by  an- 
alogy.152 

The  law  relating  to  the  jurisdiction  of  courts  enumer- 
ates, in  section  87,  among  special  cases  of  local  jurisdic- 
tion, "jurisdiction  by  residence,"  and  provides,  in  cases 
where  the  owners  of  mines,  factories,  and  the  like  have 
special  establishments  or  branches  away  from  the  places 
where  the  main  establishment  is  located,  that  actions 
referring  to  such  branch  establishments  may  be  brought 
in  the  places  where  the  branches  are  located.  This 
provision  contradicts  the  general  rule  that  actions 
are  to  be  brought  in  the  place  where  the  defendant  is 
domiciled.  It  is  therefore  a  particular  rule,  as  is  shown 
also  by  the  statute  itself  calling  such  jurisdictions  special. 
An  opinion  of  the  Supreme  Court  and  a  decree  of  the 
Ministry  of  Justice  extend  the  effect  of  this  section  87 
to  a  case  where  there  is  but  one  establishment,  but  that 
located  away  from  the  domicile  of  the  owner.  In  doing 
so,  the  Ministry  expressly  bases  its  view  .on  an  analogy 
with  said  section  87. 

Similarly,  it  is  an  analogy  with  some  particular  rule 
when  Unger 153  and  Pf  aff  -Hoffmann 154  extend  the  provisions 

w*  This  is  also  the  view  of  Stubenrauch,  "Kommentar,"  section  466, 
line  9.  He  speaks  of  an  unavoidable  analogy  (or,  as  he  also  calls  it, 
"conclusio  a  majori  ad  minus").  There  are  some  Supreme  Court  deci- 
sions to  the  same  effect  (e.  g.  GU  new  series,  835) ,  and  some  to  the  con- 
trary. 

us  "Erbrecht."  §  25,  note  3. 

i"  "Kommentar,"  ii,  p.  671. 


§24]  ANALOGY  393 

of  section  726,  Austrian  Civil  Code,155  to  cases  where  the 
inheritance  cannot  go  to  the  heirs  because  they  are 
incapable  of  inheriting,  or  because  there  are  no  heirs. 

In  the  case  of  contracts  for  the  payment  of  money  for 
goods  sold,  the  general  principle  is  that  the  vendor 
warrants  against  defects  (sections  922  seq.  Austrian 
Civil  Code).  There  is  a  particular  exception  to  this 
provided  by  the  act  relating  to  executions  (section  278), 
in  the  case  of  sales  under  execution.  The  Supreme  Court 
extends  this  exception  to  private  sales  by  the  direction 
of  the  court.156 

With  all  that,  we  must  admit,  on  the  whole,  that  an- 
alogy with  particular  rules  is  employed  but  rarely,  so  that 
a  reference  to  the  rule  of  interpretation  in  question  here 
usually  carries  conviction.  The  reason  therefor  is  not, 
however,  that  this  rule  constitutes  a  necessary  form  of 
logic  as  is  commonly  claimed,  but  because  in  most  cases 
the  subjects  of  projection,  the  social  forces  influencing 
the  application  of  the  rule,  such  as  value  judgment 
and  the  like,  are  preponderatingly  on  the  side  of  the 
general  principle.  To  take  an  example  from  economic 
life:  freedom  of  contract,  the  fundamental  principle  of 
the  law  of  property,  is  adapted  to  the  system  of  private 
initiative  actually  prevailing.  Therefore,  the  dominant 
groups  of  interests  insist  upon  and  promote  the  regulation 
of  all  unprovided  cases  in  accordance  with  this  principle. 
Just  imagine  what  tremendous  revolution  would  be  pro- 
duced in  the  social  fabric  if  the  concept  of  usury,  which 
forms  an  exception  to  the  general  rule,  were  to  be 
extended  from  credit  transactions  to  other  business 

155  The  provision  is  to  the  effect  that  where  residuary  devisees  or  leg- 
atees decline  to  accept  and  the  legal  heirs  or  distributees  renounce,  the 
legatees  are  to  receive  the  estate  pro  rata.  This  is  a  single  specific  ex- 
ception to  the  general  rule  (section  760,  Civil  Code)  regulating  the 
escheat  of  the  estate,  and  to  the  strict  distinction  to  be  made  between 
legatees  and  residuary  beneficiaries. 

»•  Opinion  relating  to  §  278  of  the  Act  relating  to  Executions. 


394         WURZEL:  JURIDICAL  THINKING    [Cn.X 

dealings,  such  as  sales,  contracts  of  wages,  etc.157  In  other 
words,  if  the  courts  would  take  it  upon  themselves  to 
correct  "excessive"  demands  in  connection  with  contracts 
of  this  kind  also.  The  principles  of  interpretation  will 
not  tolerate  the  bringing  about  of  such  extraordinary 
changes.  For  that  reason  lawyers  will  have  to  continue 
to  make  but  very  cautious  use  of  analogy  in  connection 
with  particular  rules,  and  yet  the  prohibition  of  such 
analogies  is  not  a  logical  necessity  nor  a  law  of  nature 
tolerating  no  exception.158 

§  25.  Proof  of  So-Called  Mental  Facts,  Especially  the 
Intention  of  Parties.  In  private  law,  the  discovery  of  the 
intention  of  parties  plays  an  almost  overshadowing 
part.  The  will  or  intention  a  party  has  had,  as  well  as 
other  psychological  facts  required  to  find  the  proper 
decision,  are  assumed,  as  a  matter  of  principle,  to  form 
a  part  of  the  state  of  facts  in  each  case.  No  doubt  in  by 
far  the  greater  number  of  instances  this  is  actually  cor- 
rect. For  example,  in  a  criminal  trial  the  "objective" 
and  "subjective"  facts,  the  outward  acts  and  the  inner 
disposition  of  the  defendant,  e.g.  his  malicious  intent, 
are  equally  subjects  of  proof. 

On  the  other  hand  we  have  already  taken  occasion 
to  show  that,  especially  in  civil  actions,  the  discovery  of 
mental  facts,  especially  the  intention  of  the  party,  seems 
to  be  considered  by  the  Supreme  Court  in  part  as  a  ques- 
tion of  law.  We  shall  now  venture  a  few  observations 
on  this  point,  which  however  will  fall  far  short  of  exhaust- 
ing this  infinitely  complicated  matter. 

i"  Menger  calls  special  attention  to  this  in  "Das  biirgerliche  Recht 
und  die  besitzlosen  Klassen." 

"8  Thus  the  general  conscience  did  not  support  the  refusal  of  Vienna 
courts  to  extend  the  employers'  liabilty  law  to  electric  lines,  because  the 
statute  speaks  of  "steam  railroads"  and  the  courts  relied  on  the  force  of 
the  above  rule  of  interpretation.  The  courts  found  it  all  the  easier  to 
overrule  themselves  because  they  were  themselves  trying  to  get  the 
practical  effect  of  an  extension  of  the  statute  by  analogy  in  another  and 
roundabout  manner. 


§25]  INTENTION  OF  PARTIES  395 

First,  in  regard  to  discovering  the  intention  of  the 
party,  we  shall  find,  upon  close  inspection,  a  phenomenon 
that  might  be  taken  as  analogous,  although  in  a  much 
lass  degree,  to  one  we  observed  in  connection  with  the 
search  for  the  "will  of  the  legislator."  There  is  remark- 
able uncertainty  regarding  the  object  of  the  inquiry. 

From  the  beginning,  two  theories  have  been  contending 
with  each  other  and  neither  has  been  able  to  gain  a  foot 
of  ground.  One  is  the  theory  of  expressed  intention,  plac- 
ing most  stress  on  the  declarations  the  party  has  actually 
made  and  which  therefore  has  an  objective  existence.  The 
other  theory  is  that  of  the  real  intention.  It  seeks  to  dis- 
cover, behind  the  declaration,  the  actual  psychological 
processes  of  which  the  declaration  was  the  result. 

Most  peculiar,  however,  is  the  way  in  which  legislation 
has  acted  with  regard  to  this  battle  of  theories.  It 
would  seem  that  the  matter  could  have  been  decided 
by  a  single  statutory  provision ;  but  instead  of  accepting 
one  or  the  other  of  these  views  plainly  and  unambigu- 
ously, nothing  at  all  is  done  in  the  matter,  or,  as  in  the 
Austrian  Civil  Code,  there  is  a  turning  and  twisting 
through  a  maze  of  provisos.  For  instance,  section  278 
of  the  Commercial  Code  accepts  the  theory  of  real  inten- 
tion; but  the  very  next  section,  section  279,  refers  the 
judge,  in  order  to  ascertain  the  meaning  of  acts  or  omis- 
sions, to  the  meaning  attaching  to  such  acts  or  omissions 
by  themselves  in  the  light  of  existing  customs  and  usages. 
This  is  a  very  important  limitation  on  the  provisions  of 
the  preceding  section,  and  it  is  not  easy  to  see  the  full 
consequences. 

The  new  German  Civil  Code,  in  one  place  (section  133) 
provides:  "In  the  interpretation  of  the  intention  of  a 
party  the  real  intention  shall  be  ascertained  instead  of 
adhering  to  the  literal  sense  of  his  declaration."  How- 
ever, in  another  place,  section  157,  the  code  provides 


396         WURZEL:  JURIDICAL  THINKING    [CH.X 

that  "contracts  shall  be  interpreted  so  as  to  maintain 
good  faith  with  due  regard  to  the  usages  of  business." 
This  makes  the  objective  meaning  of  the  declaration  the 
important  thing,  and  certainly  this  objective  meaning 
will  not  always  be  identical  with  the  "real  intention." 

From  this  condition  of  both  theory  and  legislation  we 
may  conclude  that  the  process  of  ascertaining  the  in- 
tention of  the  party,  like  that  of  finding  the  legislative 
intent,  although  to  a  less  degree,  stands  in  need  of  some 
vagueness,  some  leeway,  if  it  is  to  correspond  to  the 
requirements  of  real  life.159  However,  just  because  we 
do  not  confine  ourselves  to  the  discovery  of  the  actual 
intention  some  private  person  has  had,  but  go  beyond 
that  and  try  to  ascertain  the  objective  meaning  of 
some  act,  declaration,  or  omission,  just  for  that  reason  it  is 
the  same  as  in  the  case  of  the  legislative  intention.  To 
interpret  that  meaning  it  is  necessary  to  untangle  the 
most  varied  mass  of  opinions,  observations,  and  value 
judgments.  That  mental  operation  forms  a  part  of  the 
"finding  of  the  law."  It  is  therefore  a  part  of  juridical 
thinking,  and  subject  to  the  same  sort  of  influences  as 
the  discovery  of  the  "intention  of  the  legislator."  It 
deals  with  the  same  sort  of  subject  material  as  "pro- 
jection." It  is  this  so-called  social  side  of  the  inquiry 
into  the  intention  of  the  party,  to  which,  evidently 
though  imperfectly,  those  statutory  provisions  refer 
which,  like  the  sections  cited  above,  speak  of  usages, 
good  faith,  customs  of  business,  trade  habits  and  the 
like.  In  determining  the  meaning  of  a  contract,  we  may 
see  an  evident  inclination  to  assume  as  long  as  possible 

1S»  The  reason  for  this  must  be  sought  in  the  denial  that  there  is  a 
transition  zone  between  rules  and  facts,  and  in  the  formal  representation 
for  the  whole  process  of  juridical  thinking  as  the  subsumption  of  given 
facts  under  a  given  intention  of  the  legislator.  In  truth,  however,  the 
transition  zone  thus  eliminated  from  the  account  does  exist  just  the  same, 
and  there  is  nothing  left  but  to  extend  the  two  other  categories  to  cover  it. 


§25]  INTENTION  OF  PARTIES  397 

that  both  parties  are  honest  people  acting  in  accordance 
with  good  morals.  Where  one  party,  or  both,  have  as  a 
matter  of  fact  attached  some  reserved  meaning  to  a 
declaration,  with  a  view  to  obtaining  a  more  advantage- 
ous position,  practising  economic  extortion,  or  the  like, 
such  actual  intentions  cannot  be  "utilized,  even  if  they 
are  proven,  for  the  interpretation  of  the  legal  intention, 
the  "manifest  will  of  the  party."  As  far  as  possible  they 
will  be  ignored  by  the  courts.  At  the  same  time,  the 
judge  will  decide  what  constitutes  deceit,  overreaching, 
etc.,  in  the  light  of  the  statute  on  the  one  hand,  of  his 
whole  mental  attitude  towards  the  life  of  society  on  the 
other. 

Even  where  there  is  an  actually  established  state  of 
mind  of  some  individual,  juridical  thinking  may  still 
have  the  function  of  separating  the  portion  of  this  state 
of  mind  which  is  legally  relevant  from  the  part  that  is 
irrelevant.  This  separation  goes  beyond  a  mere  ascer- 
taining of  facts,  in  view  of  the  unity  and  mutual  inter- 
dependence of  the  various  factors  making  up  such  state 
of  mind.  This  is  apparent  in  the  case  of  distinguishing 
immaterial  motives  from  the  "real"  intention.160  For 
example,  can  a  loan  made  for  gambling  purposes  be 
recovered?  That  depends  on  whether  we  consider  as 
"causa"  of  the  making  of  the  loan  merely  a  willingness 
to  extend  credit,  disregarding  as  an  immaterial  motive 
the  further  contents  of  the  creditor's  consciousness 

180  According  to  Dernburg,  the  determining  factor  for  this  is  the  custom 
of  business,  or  under  any  circumstances  some  social  factor.  Dernburg 
says  in  his  "Pandekten,"  section  94:  "Preliminary  intentions  bringing 
about  the  transaction  and  at  the  same  time  essential  to  it  are  called  mo- 
tives. .  .  .  That  will  be  considered  as  essential  within  the  meaning 
of  the  party  which  is  ordinarily  so  considered  in  the  regular  course  of 
similar  transactions."  And  similarly  in  section  102:  "The  modern  doc- 
trine considers  a  mistake  regarding  qualities  of  goods  essential  if  accord- 
ing to  the  current  notions  of  business  men  in  similar  cases  the  goods 
would  have  been  classified  as  a  different  kind  of  goods  if  they  did  not  have 
the  qualities  erroneously  supposed  to  attach  to  them." 


398         WURZEL:   JURIDICAL  THINKING    [Cn.X 

(to  wit,  his  knowledge  that  the  money  lent  will  be  em- 
ployed in  a  game  which,  possibly,  is  unlawful);  or 
whether  we  consider  such  knowledge  as  "an  intention  to 
make  gambling  possible"  and  as  such  treat  it  as  an  in- 
tegral part  of  the  intended  transaction.  It  is  easily  seen 
that  there  is  here  a  %ort  of  vagueness,  and  that  such 
artificial  separation  of  the  processes  of  consciousness 
which  in  reality  form  a  single  whole,  is  subject  to  value 
judgments  at  discretion. 

Occasionally  one  may  see,  by  simply  looking  at  the 
result  arrived  at  by  the  judge  in  his  endeavor  to  find  the 
mental  facts,  that  he  has  carried  into  his  finding  quite 
as  much  or  more  of  himself  than  he  has  really  discovered 
from  the  outside.161  This  shows  that  he  has  really  done 
something  quite  different  from  merely  establishing  facts. 
Let  us  take  an  example.  Somebody  is  charged  with 
uttering  blasphemy.  The  judge,  trying  to  see  whether 
section  122  of  the  Austrian  Penal  Code  is  applicable, 
must  become  clear  in  his  own  mind,  whether  the  defend- 
ant had  in  mind  a  monotheistic,  polytheistic,  or  pantheis- 
tic conception  of  the  deity,  whether  his  intention  was 
one  merely  of  vain  cursing,  or  of  bringing  the  idea  of  God 
into  disrepute,  or  of  injuring  the  religious  sensibilities 
of  others,  and  so  forth.  Possibly  the  blasphemer  him- 
self, if.he  tried  ever  so  hard,  could  not  give  a  clear  account 
of  these  things,  yet  the  judge  has  to  decide  upon  them. 

i«  This  constitutes  a  large  part  of  the  uncertainty  which  has  long  been 
recognized.  Averanius,  "Interpretationum  libri  v,"  book  i,  chapter  33, 
says:  "In  explorandS  voluntate  id  quod  verisimile  est  sequimur."  An- 
other reason  for  uncertainty  is  found  in  this,  that  the  idea  of  "wrong"  or 
"guilt"  is  likely  to  enter  into  our  attempts  to  find  "internal"  facts. 
One  is  almost  always  likely  to  identify  "he  knows"  with  "he  ought 
to  know."  Now,  why  "ought  he"  to  know?  (Comp.  infra,  §  27.) 
Moreover,  this  alone  makes  the  finding  of  internal  facts  in  many  cases 
something  more  than  mere  finding  of  facts,  that  very  frequently  the  stat- 
utes themselves  contain  suppositions  —  well  or  ill  founded  —  regarding 
the  probable  existence  of  certain  facts,  such  as  silence  regarding  import- 
ant information,  certain  kinds  of  declarations,  and  the  like.  As  stated 
above,  the  matter  is  exceedingly  complicated. 


§25]  INTENTION  OF  PARTIES  399 

Some  cases  from  civil  practice  will  make  the  matter 
even  clearer.  A  young  girl  in  the  lower  walks  of  life 
becomes  engaged  to  a  clerk.  In  order  to  enable  him  to 
establish  a  home  she  turns  over  to  him  her  savings,  and 
together  they  establish  themselves  in  some  business. 
They  have  no  success  in  this,  and  as  a  result  the  engage- 
ment is  broken  off.  Now  the  girl  sues  her  former  fiance 
for  a  return  of  the  money  and  the  answer  is  that  it  was 
lost  in  the  partnership  business. 

Now  the  judge  will  have  to  find  whether  the  turning 
over  of  the  money  was  intended  as  a  loan;  or  whether 
it  was  meant  to  be  the  advancement  of  a  marriage  por- 
tion ;  or  whether  the  business  was  to  belong  to  the  plain- 
tiff with  the  defendant  as  partner;  or  whether  the  money 
was  invested  as  a  limited  partnership  fund,  or  whatever 
other  possibilities  may  exist.  The  judge  has  to  answer 
all  these  questions,  although  perhaps,  nay  in  all  prob- 
ability, the  intention  of  the  parties  at  the  time  when  the 
money  was  turned  over  was  in  no  wise  definitely  fixed. 
What  was  in  their  minds  was  nothing  more  than  that  they 
loved  each  other,  had  perfect  mutual  confidence,  were 
going  to  get  married,  and  that  it  made  no  difference 
whatever  in  whose  pocket  the  money  was  kept.  In 
short,  the  thinking  and  willing  of  the  two  young  people 
did  not  proceed  according  to  the  forms  of  the  Roman  law. 
The  judge  will  not  be  able  to  arrange  the  facts  into  one  of 
those  forms,  and  consequently  cannot  begin  to  apply  the 
legal  rule  by  subsuming  the  facts,  until  he  has  succeeded 
in  reshaping  the  real  facts  relating  to  the  intention  of 
the  parties,  by  utilizing  his  own  attitude  towards  social 
life  (his  business  experience,  moral  judgments,  and  the 
like),  in  such  a  manner  that  he  gets  at  last  a  state  of 
facts  fit  to  be  placed  into  one  of  the  accepted  categories 
of  business  transactions. 


400         WURZEL:   JURIDICAL  THINKING    [Cn.X 

It  has  often  been  observed  that  what  the  judge  decides 
to  be  the  established  will  of  the  parties  frequently  has 
had  no  existence  in  their  minds.  Some  witty  person 
remarked  that  whenever  a  lawyer  says  that  something 
or  other  was  the  manifest  intention  of  somebody,  "mani- 
fest" means  that  the  man  has  really  never  had  such  an 
intention.  Jhering,  in  his  "Scherz  und  Ernst  in  der  Juris- 
prudenz,"  makes  fun  of  a  judgment  he  himself  once 
rendered  when  he  was  a  young  judge.  He  had  insisted 
that  the  "animus  possidendi"  of  some  party  should  be 
proved  like  any  other  fact.  But  Jhering  does  not  draw 
general  consequences  from  his  story. 

Schlossmann,  in  his  treatise  on  contracts162  declared 
that  all  implied  contracts  were  nothing  but  legal  fictions, 
saying  "that  this  concept  means  nothing  but  that  under 
certain  circumstances  a  court  will  have  to  decide  as  if 
there  had  been  a  real  contract."  That  may  be  an  exag- 
gerated generalization,  and  yet  it  contains  a  kernel  of 
truth  which  ought  to  be  laid  bare. 

§  26.  "Safety-Valve  Concepts."  Projection  does  not 
proceed  in  the  same  manner  in  regard  to  all  concepts, 
principles,  and  institutions  of  a  system  of  law.  We 
have  already  seen  (in  §  15)  that  the  reason  for  the  vague- 
ness of  concepts  and  the  transition  zone  surrounding 
the  conceptual  center  lies  in  the  great  complexity  of  the 
phenomena  comprehended  in  a  general  concept,  especially 
in  the  case  of  social  phenomena.  However,  all  legal  rules 
do  not  contain  legal  concepts  having  direct  reference  to 
social  phenomena.163 

182  "Vertrag,"  Leipzig,  1876. 

183  Or  to  any  other  complicated  phenomena.     In  the  case  of  concepts 
dealing  with  social  matters  the  uncertainty  is  greatest.    Further,  many 
concepts  are  not  general  enough,  although  the  nature  of  law  corresponds 
best  to  general  concepts.     For  law  is  a  general  rule.     There  are  some 
legal  rules,  however,  which  lack  this  general  character;   such  are  privi- 
leges, certain  rules  of  public  law,  etc.  —  These  deal  with  specific  objects 
and  therefore  employ  specific  concepts.    Here  there  can  be  no  question  of 
projection. 


§26]  SAFETY-VALVE  CONCEPTS  401 

In  addition  to  the  fact  that  a  majority  of  the  concepts 
employed  in  the  interpretation  of  legal  rules  are  of  a  sup- 
plemental character  only,  it  is  a  principal  maxim  of 
legislative  technic,  based  on  the  uncertainty  insepar- 
able from  the  process  of  projection,  that  one  must  try 
to  get  along  with  as  few  of  such  general  concepts  as  pos- 
sible.164 Of  course,  in  the  nature  of  things  one  cannot 
avoid  their  use  altogether.  One  might  be  tempted  to 
overcome  the  uncertainty  produced  by  general  concepts 
by  dividing  the  subject-matter  of  a  statute  into  a  large 
number  of  very  special,  narrow  concepts.  That  would  be 
a  "casuistic"  statute.  However,  it  is  well  known  that 
no  casuistry,  however  detailed,  can  possibly  do  justice 
to  the  extreme  variety  of  the  phenomena  of  real  life; 
there  will  be  constantly  new  combinations  clamoring 
for  attention.  Analogy  and  projection  cannot  be  elim- 
inated in  this  way;  at  most  the  province  of  the  former 
will  be  enlarged  at  the  expense  of  the  latter.  This  is  all 
the  less  desirable  for  the  reason  that  the  finding  of  an 
analogy  will  become  more  and  more  difficult  in  propor- 
tion as  there  are  many  particular  provisions  regarding 
details.  Moreover,  as  you  multiply  the  number  of  rules 
interconnected  with  each  other,  you  increase  the  diffi- 
culty of  bearing  their  mutual  relations  in  mind, 
thereby  making  the  finding  of  the  proper  rule  and  the 
work  of  "construction"  (in  the  sense  defined  in  §  18, 
supra)  more  uncertain.165  A  casuistic  body  of  laws  has 

i«  The  outward  expression  of  this  tendency  is  seen  in  the  jejune  style 
of  statutes  and  the  constant  repetition  of  identical  words  and  phrases. 
Lest  its  application  be  uncertain,  a  statute  must  not  provide  variety  in 
expressions  and  designations,  such  as  good  style  and  the  literary  sense 
demand.  Thus  Unger  ("Erbrecht,"  section  5,  note  4)  criticizes  the  Aus- 
trian Civil  Code  for  alternating  with  certain  expressions  in  sections  540 
to  547,  for  the  sake  of  euphony. 

!•»  The  mental  phenomenon  of  projection  may  be  observed,  in  con- 
sequence of  the  multiplicity  and  complexity  of  statutes,  whenever  the 
attempt  is  made  to  find  a  common  term  for  a  group  of  laws  on  the  rela- 
tions and  rights  created  by  statutes.  The  concept  "officer,"  although  it 


402         WURZEL:  JURIDICAL  THINKING    [Cn.X 

been  justly  compared  to  the  Chinese  mode  of  writing, 
which  is  so  much  less  practical  than  ours.  A  body  of 
general  rules  would  still  be  necessary  at  least  for  the 
purpose  of  supplementing  the  casuistic  provisions. 

Each  of  the  great  legal  systems  aims  to  accomplish  its 
purpose  by  combining  and  grouping  the  concepts,  rela- 
tively few  in  number,  which  embody  directly  the  phe- 
nomena of  social  life  as  they  would  appear  if  there  were 
no  laws.  Legal  rules  and  concepts  of  a  higher  order  are 
formulated  which  have  indeed  for  their  subject-matter 
those  unregulated  phenomena  of  social  life,  but  no  longer 
do  so  in  a  direct  or  immediate  manner.  Their  immediate 
subject-matter  is  rather  rules  of  a  primary  order,  or 
concepts  in  which  such  rules  are  contained  or,  to  use  the 
expression  invented  by  Jhering,  precipitated.166  The 
immediate  content  of  the  concept  "law  of  things"  is 
formed  by  the  concepts  property,  servitude,  pledge,  and 
the  like;  again,  the  subject-matter  of  "pledge"  is  found 
in  concepts  like  chattel,  demand,  satisfaction,  transfer. 
Not  until  we  have  descended  this  scale  do  we  arrive  at 
terms  and  concepts  of  the  primary  order,167  the  content 
of  which  is  not  denned  by  law  but  tries  to  express  im- 
mediately some  phenomenon  of  unregulated  social  life. 
For  instance,  taking  the  concept  "thing" :  if  that  also  has 
been  legally  denned,  the  primary  concepts  would  be  those 
employed  in  making  that  definition.  In  systems  of 
law  that  are  technically  well  worked  out,  the  rules  and 
concepts  of  the  higher  orders  have  well  defined  forms, 

does  not  refer  to  a  phenomenon  of  free  social  life  but  to  certain  qualities 
created  by  law  in  certain  persons,  has  a  rather  wide  zone  of  projection 
and  uncertainty.  Recently  the  courts  projected  the  concept,  in  a  pro- 
secution for  insulting  an  officer,  upon  the  conductors  of  the  Vienna  street 
railway. 

!••  Comp.  above,  §  6. 

'« Eltzbacher  is  wrong  when,  in  touching  on  this  point,  he  denies  all 
difference  between  concepts  like  "thing,"  or  "conversion,"  and  legal 
ideas  such  as  "right  of  pledge"  or  "servitude"  ("Uber  Rechtsbegriffe," 
Berlin  1899,  pp.  23,  33). 


§26]  SAFETY-VALVE  CONCEPTS  403 

and  may  easily  be  dissolved  into  concepts  of  the  primary 
order  from  which  they  have  taken  their  origin  by  con- 
scious combination.  They  are  capable  of  being  "con- 
strued" and  "deconstrued."  Thus,  for  instance,  the 
"formula  hypothecaria"  is  an  almost  mathematically 
precise  definition  of  the  pledge  concept. 

In  this  way  we  know  precisely  what  is  meant  by  "theft," 
to  wit,  the  taking  of  a  movable  thing,  not  one's  own,  out 
of  the  possession  of  another,  for  the  purpose  of  gaining  an 
advantage  and  without  the  consent  of  the  possessor.  At 
first  blush  at  least,  the  concept  "possession"  will  also 
offer  no  difficulties.  We  know  it  means  the  actual  power  of 
disposal  over  a  thing,  exercised  by  a  person  "animo  dom- 
ini."  As  long  as  we  remain  in  this  field,  where  the  appli- 
cability of  concepts  of  the  primary  order  does  not  enter 
into  consideration,  the  principal  task  and  the  principal 
difficulty  of  the  lawyer  will  be  to  find  just  what  the  legis- 
lator meant  by  the  various  concepts  he  expressed,  in  other 
words,  to  find  the  true  sense  and  correct  interpretation  of 
the  rules.  Secondarily,  he  may  encounter  difficulties  in 
finding  what  applicable  rules  there  may  be — in  other  words 
in  knowing  the  contents  of  the  statute.  But  the  special 
difficulties  of  projection  hardly  come  into  play  as  yet.168 

The  difficulties  of  projection  come  forward  after  we 
have  descended  to  the  concepts  of  the  primary  order  and 
now  are  compelled  to  proceed  further  to  the  phenomena 
of  unregulated  social  life,  for  instance  when  we  are  called 
upon  to  say  whether  this  phenomenon  or  the  other  con- 
stitutes an  "advantage"  or  an  "actual  power  of  disposal" 
or  an  "animus  domini." 

Here  for  the  most  part  the  inquiry  into  the  real, 
actual  meaning  of  the  rule  can  at  best  give  us  some 
slight  hints.  Here  begins  the  field  of  projection,  and  we 
must  be  guided  by  social  tendencies,  linguistic  usage,  a 

"8  Cf.  note  165  supra. 


404         WURZEL:  JURIDICAL  THINKING    [Cn.X 

variety  of  value  judgments,  opinions,  and  the  rest;  for 
here  we  find  a  multitude  of  boundary  and  transition 
phenomena.  Here  the  old  maxim  asserts  itself:  "omnis 
definitio  periculosa  est,  parum  enim  ut  subverti  non 
possit."  In  this  connection  one  must  even  acknowledge 
that  there  is  some  significance  in  the  observation  of 
Nippel,  which  is  almost  naive  as  to  form,  when  he  says: 
Surely  one  cannot  express  the  ideas  of  the  legislator 
better  by  words  different  from  those  he  has  used  himself. 
The  uncertainty  encountered  at  this  point  cannot  be 
remedied  by  refinements  of  legislative  technic.  All 
the  latter  can  do  is  to  endeavor  to  confine  the  uncertainty, 
the  necessity  of  resorting  to  projection,  to  a  few  broadly 
circumscribed  concepts  and  thus  to  preserve  the  purely 
logical,  self-contained  character  of  all  the  rest.  For  any 
legal  edifice,  no  matter  how  firmly  it  is  constructed,  must 
rest  on  the  shifting  surface  of  social  life.  Therefore  it  has 
need  of  some  appliance  by  which  it  can  adapt  itself  in  part 
to  its  movements  in  order  to  govern  it  all  the  more  surely. 
This  condition  of  things  is  not  always  a  cause  of  regret, 
as  is  shown  by  those  cases  where  a  statute  intentionally 
fails  to  define  one  side  or  the  other  of  some  legal  institu- 
tion, in  order  to  leave  free  play  to  the  uncertainties  of 
social  influences.  As  far  back  as  the  Romans,  any 
definition  of  "more"  (regarding  the  effect  of  which  there 
were  different  principles)  was  intentionally  avoided.169 
In  a  similar  way,  also,  in  the  German  Civil  Code, 
a  number  of  rules  regarding  "legal  transactions"  have 
been  inserted,  but  a  general  definition  of  what  constitutes 
a  "legal  transaction"  has  been  intentionally  omitted, 
so  that  the  practice  of  the  courts  might  be  unhampered  in 
elaborating  the  conception  that  is  to  support  these  rules.170 

'••Dig.  22,  7:  De  usuris. 

»•  A  mathematician  might  compare  this  to  an  equation  with  two 
variable  quantities:  Y  =  Fx. 


§26]  SAFETY-VALVE  CONCEPTS  405 

At  any  rate,  whether  consciously  or  by  some  instinct, 
every  system  of  law  contains  conceptions  which  become 
recognized  by  means  of  projection.  Such  concepts  I 
should  like  to  name  "safety-valve"  concepts,  because 
they  are  comparable  to  safety-valves.  In  every  code  of 
departmental  rules,  every  act  for  the  regulation  of  public 
services,  every  book  of  police  ordinances,  you  will  find 
such  provisions.  In  Germany,  they  are  popularly  known 
as  "India  rubber  sections."  Even  in  the  field  of  private 
law,171  where  for  centuries  talent  and  industry  have  been 
employed  to  throw  light  on  all  that  is  not  clear,  safety- 
valve  concepts  are  found  necessary.  A  few  such  may 
serve  as  illustrations. 

§  27.  Safety-Valve  Concepts  Continued.  1.  Wrongful 
("culpa").  This  is  a  very  broad  concept  pervading  the 
whole  field  of  private  law.  At  every  step  we  meet  with 
it.  Substantial  success  in  a  lawsuit  almost  always  turns 
on  questions  arising  out  of  this  concept.  Of  course, 
nobody  is  going  to  decide  for  the  party  that  acts  "wrong- 
fully." Even  if  considerations  drawn  from  the  law  of 
property  or  the  law  of  inheritance  were  to  speak  in  his 
favor,  the  judge  would  constantly  incline  to  impose  upon 
the  party  in  fault  conditions  of  indemnity  or  restitution 
that  render  his  apparent  victory  nugatory. 

Of  the  two  principal  varieties  of  "culpa,"  to  wit, 
malice  ("dolus")  and  negligence,  I  shall  here  touch  upon 
the  latter  only.  It  has  been  variously  described  as 
"culpable  inattention" ;  "lack  of  attention  or  proper  dili- 
gence"172; "lack  of  such  diligence  as  ordinary  capacity 


171  In  general,  the  difficulties  of  deduction  decrease  in  this  order: 
law  of  inheritance,  law  of  things,  law  of  obligations;  while  the  difficul- 
ties of  projection  increase  correspondingly.  The  law  of  inheritance,  that 
proud  superstructure  of  the  law  of  property,  is  the  classical  province  of 
deduction,  while  the  law  of  negligence  is  the  principal  domain  of  pro- 
jection. 

"*  Austrian  Civil  Code,  §  1294. 


406         WURZEL:   JURIDICAL  THINKING    [CH.X 

is  able  to  exercise"178;  "omission  of  proper  exertion  of 
mind"174;  "absence  of  proper  circumspection,  care,  or 
energy  of  action."175 

Thus  definitions  vary.  It  is  well  known  that  different 
degrees  of  negligence  are  distinguished,  such  as  slight  and 
gross  negligence,  according  as  there  was  lack  of  exercising 
the  powers  of  mind  to  be  found  in  any  ordinary  person, 
or  only  those  presumed  to  be  possessed  by  a  "prudent 
head  of  a  household."  Now  let  us  analyze  this  concept, 
not  in  its  relations  to  other  legal  concepts  but  in  its  func- 
tions in  face  of  the  phenomena  of  life. 

First  of  all,  attention  may  be  called  to  what  may  be 
designated  as  the  anti-historical  character  of  the  concept. 
Whether  negligence  shall  be  imputed  to  a  party  must 
always  be  decided  in  accordance  with  the  notions  of  the 
present  age,  and  never  according  to  what  the  legislator 
may  have  thought  of  it  when  the  law  was  made.  A 
landlord  is  charged  with  failure  to  light  a  dark  stairway, 
whereby  a  tenant  is  injured;  or  it  is  claimed  against  the 
manager  of  a  bathing  establishment  that  his  appliances 
are  unsafe;  or  the  administrator  of  a  building  has  failed 
to  insure  it  against  fire.  The  defendants  will  offer  what 
defense  they  can  find,  but  will  not  be  heard  to  say  that  in 
1811,  when  the  Civil  Code  went  into  effect,  nobody  both- 
ered about  lighting  up  stairways;  appliances  in  bath 
houses,  such  as  complained  of,  were  then  in  common  use ; 
or  persons  whom  nobody  would  think  of  calling  anything 
but  good  and  prudent  householders  never  lighted  their 
stairways  in  those  days  nor  insured  their  buildings. 
Nor  would  it  be  a  good  defense  to  assert  that  such  actions 
and  persons  of  such  disposition  were  what  the  legislator 
had  in  mind  when  he  spoke  of  a  good  and  prudent  house- 

i"  Austrian  Civil  Code,  §  1297. 
"'« Dernburg,  "Pandekten,"  §86. 
i"  Unger,  "System,"  §§  101,  102. 


§27]  SAFETY-VALVE  CONCEPTS  407 

holder,  and  the  term  "negligence"  ought  not  to  be  given 
a  meaning  different  from  that  which  the  legislator  con- 
nected with  it.  We  would  simply  smile  at  such  an  answer. 

But  suppose  the  defendant  takes  a  different  course. 
He  offers  evidence  that  prudent  householders,  or  let  us 
say  persons  of  ordinary  capacity,  do  as  a  matter  of  fact, 
sometimes  or  commonly,  fail  to  light  their  stairways; 
or  he  raises  an  issue  of  fact  on  the  point  whether  an 
ordinary  person,  with  the  exercise  of  ordinary  attention, 
would  have  been  moved  to  light  the  staircase  or  to  insure 
the  building;  and  he  offers  expert  testimony  by  statis- 
ticians or  psychologists  to  prove  the  facts,  on  the  plea  that 
the  fact  in  question  is  of  a  statistical  or  psychological 
nature.  Surely  the  court  would  decline  to  receive  such 
evidence. 

The  answer  to  the  question  what  acts  are  negligent  is  by 
no  means  limited  to  those  which  the  legislator  had  in 
mind,  as  shown  by  historical  research.  The  householder 
or  the  man  of  ordinary  prudence,  who  is  held  up  to  us  as 
a  model,  is  not  an  actual  average  person  who  can  be 
found  by  statistics  or  in  some  other  way;  the  "ordinary 
moderate  energy  of  action"  he  is  expected  to  show  is  not 
at  all  a  fact  demonstrable  by  psychological  methods. 
Nor  is  it  intended  that  they  should  be  such.  By  the 
concept  "negligence"  one  does  not  understand  some 
definite  way  of  acting.  To  describe  the  manner  of  acting 
wrhich  comes  within  the  concept,  to  invest  the  model  held 
up  by  the  law,  the  "diligens  paterfamilias,"  with  certain 
qualities ;  to  estimate  whether  ordinary  care  would  have 
been  sufficient  to  lead  to  a  certain  act  —  all  these  things 
are  not  findings  of  fact  but  parts  of  the  process  of  weigh- 
ing facts  in  the  scales  of  the  law.  For  that  reason  such 
questions  will  be  considered  by  the  Supreme  Court. 
In  these  cases  the  application  of  the  law  to  the  facts 
does  not  involve  an  inquiry  into  what  meaning  the 


408        WURZEL:  JURIDICAL  THINKING    [CH.X 

legislator  attached  to  the  term  "negligence."  This  is  to 
some  extent  impossible,  and  in  part  would  be  of  little 
help.  It  consists  rather  of  estimating  the  character  of  the 
facts  with  the  aid  of  the  whole  conception,  ethical,  eco- 
nomic, social,  and  otherwise,  which  the  judge  has  of  hu- 
man life.  This  process  of  estimating  is  affected  also 
passively  by  all  the  factors  enumerated,  and  in  it  are 
involved  equally  the  experience  and  knowledge  of  the 
world  possessed  by  the  judge  and  by  the  value  judgments, 
i.e.  currents  of  volition,  that  are  to  be  found  in  his  mind. 

It  is  these  currents  of  volition  that  really  imbue  the 
"prudent  householder"  with  certain  qualities176  which 
the  judge  postulates  as  existing  in  him,  although  he 
adapts  his  postulate  as  far  as  possible  to  what  is  met  with 
in  real  life.  Thus  it  is  that  the  concept  "negligence"  is 
projected  upon  certain  ways  of  acting. 

From  this  we  may  see,  also,  that  the  process  described, 
although  it  is  not  directed  towards  finding  the  intention 
of  the  legislator,  is  yet  no  such  thing  as  analogy.  At  the 
same  time  it  is  not  inconsistent  with  the  intent  of  the 
statute.  The  concept  "negligence"  was  to  constitute  a 
form  m  (it  is  immaterial  whether  this  was  intended  con- 
sciously or  not),  by  means  of  which  a  confused  mass  of 
unforeseen  acts  could  be  arranged  so  as  to  become  sus- 
ceptible to  a  legal  estimate.  In  this  higher  sense,  to  be 
sure,  one  may  reduce  even  projection  to  the  will  of  the 

"•  That  is  why  it  was  quite  proper,  in  the  German  Civil  Code,  in 
denning  negligence,  to  omit  setting  up  the  type  of  the  "prudent  head  of  a 
household"  or  any  similar  type,  and  instead  to  say  very  generally  with  a 
reference  to  the  social  side  of  the  matter,  "He  is  negligent  who  disre- 
gards the  care  required  in  intercourse  between  human  beings." 

177  It  is  only  where  such  forms  are  employed  that  a  statute  can  pro- 
perly oblige  a  judge  to  find  a  decision  in  every  case  and  can  declare  him 
guilty  of  a  denial  of  justice  when  he  says:  "Mihi  non  liquet."  Thus, 
notably,  in  the  French  Civil  Code,  section  4:  "The  judge  who  refuses  to 
render  a  decision  on  the  pretext  that  there  is  an  omission  [du  silence], 
ambiguity  or  incompleteness  in  the  statute,  may  be  prosecuted  for  the 
crime  of  denial  of  justice  [deni  de  justice]. 


§27]  SAFETY-VALVE  CONCEPTS  409 

legislator.  By  means  of  this  logical  form  it  is  possible 
for  entirely  new  rules  of  conduct  to  arise  which  are  to  be 
distinguished  from  provisions  of  law  by  nothing  except 
that  one  has  to  utilize  the  concept  "negligence"  in  order 
to  make  them  reasonable.  For  instance,  when  the 
number  of  vehicles  increases,  the  custom  grows  up  of 
driving  always  on  the  left  side  of  the  street.  At  once, 
people  will  incline,  whenever  two  wagons  or  bicycles 
collide,  to  impute  negligence  to  the  party  driving  on  the 
right  side,  although  the  custom  of  taking  the  left  may  be 
nothing  but  the  result  of  a  suggestion  made,  let  us  say,  by 
the  League  of  Wheelmen.  As  a  matter  of  fact,  though  not 
formally  by  law,  the  rule  of  taking  the  left  has,  by  the  aid 
of  the  concept  "negligence,"  become  obligatory. 

The  course  of  projection  may  become  changed  under 
the  influence  of  social  value  judgments.  Of  this  also  the 
application  of  the  concept  "negligence"  will  furnish  some 
good  examples. 

Section  1315  of  the  Austrian  Civil  Code  limits  the 
liability  of  employers  for  injuries  caused  by  employees 
in  the  course  of  their  employment  to  negligence  in  select- 
ing their  employees.  The  development  of  great  industrial 
and  transportation  enterprises  employing  mechanical 
motors,  whereby  great  dangers  and  constantly  recurring 
accidents  were  produced,  made  this  rule  exceedingly 
harsh  to  individuals,  and  economically  harmful  for  society. 
As  a  result,  pressure  began  for  devolving  the  economic 
consequences  of  these  accidents  upon  such  enterprises, 
which  were  better  able  to  bear  the  burden,  by  making 
these  enterprises  liable  to  a  greater  extent,  or  in  some 
cases  by  compelling  them  to  insure  their  employees,  and 
the  like.  This  tendency  became  manifested  in  the  en- 
actment of  statutes  regarding  the  liability  of  railways,  the 
insurance  of  employees,  as  well  as  in  many  further  pro- 
jects of  reform  and  in  juridical  disquisitions. 


410         WURZEL:   JURIDICAL  THINKING    [CH.X 

Now,  if  one  contemplates  the  decisions  of  the  courts,  it 
is  noticeable  how  they  become  constantly  stricter  in 
insistence  on  care  and  diligence,  and  how  they  incline  more 
and  more  to  find  that  there  was  negligence  on  the  part  of 
the  employer.  First  of  all,  the  principle  of  liability  for 
negligence  only  in  selecting  employees  was  dropped  in 
the  case  of  corporations,  by  which  the  majority  of  such 
enterprises  are  owned.  As  late  as  in  the  year  1866178 
an  action  commenced  against  a  steamship  company  was 
dismissed  on  the  ground  that  there  was  no  negligence 
on  its  part  because  it  had  shown  proper  care,  as  required 
by  law,  in  the  selection  of  a  captain,  where  it  was  shown 
that  the  master  of  one  of  the  company's  vessels  had  cap- 
sized a  boat  by  passing  it  too  fast,  in  plain  contravention 
of  the  regulations.  Yet  a  little  later  we  find  the  argu- 
ment, in  many  cases  barely  applicable  to  the  facts,  that 
the  very  circumstance  of  an  employee  being  negligent 
proves  that  the  employer  was  not  careful  in  selecting  him, 
as  required  by  section  1315. 179  By  and  by  the  whole  prin- 
ciple that  the  employer  does  not  become  liable  unless 
he  was  negligent  in  selecting  the  employee  is  thrown  over- 
board, on  the  basis  of  various  sections  of  the  code;  in 
its  place  we  become  familiar  with  an  argument  which  is 
doubtlessly  more  reasonable  and  runs  like  this:  a  juridi- 
cal person  can  act  only  by  agents,  therefore  it  is  impos- 
sible to  distinguish  between  the  acts  of  a  company  and 
those  of  its  employees ;  consequently  the  company 
must  be  liable  for  all  acts  of  its  agents,  the  act  of  the  agent 
is  the  act  of  the  company.180 

"» GU  2746. 

i"  So  decided  as  late  as  1899  (GU,  new  series,  766).  The  keeper  of  a 
railway  crossing  left  his  post  without  letting  down  the  bars.  The  court 
holds  that  this  act  was  sufficient  to  show  that  the  man  was  incompetent 
for  this  employment  although  he  had  passed  an  examination  for  the  post 
of  assistant  watchman. 

is°Entscheidungen  ex  1899,  GU  (n.F.)  691. 


§27]  SAFETY-VALVE  CONCEPTS  411 

Development  did  not  stop  at  this  point.  Especially 
in  the  case  of  electric  street  railways,  which  easily  pro- 
voked comparisons  with  steam  railways,  the  statutory 
provisions  in  force  before  the  recent  extension  of  the 
railway  liability  law  proved  very  unsatisfactory.  This 
was  kept  in  mind  in  each  case  where  a  court  had  to  decide 
what  constituted  negligence.  Thus  it  came  about  that 
many  appliances  of  such  street  railways,  although 
tested  by  public  authority  and  erected  by  experts  of  the 
highest  quality,  such  as  the  arrangement  of  stopping 
places,  switching  devices,  and  the  like,  were  held  to  be  so 
defective181  as  to  amount  to  "lack  of  the  care  required  by 
average  skill"  in  the  words  of  the  Austrian  Civil  Code).182 
Occasionally  we  find  even  the  argument  that  the  main- 
tenance of  an  establishment  causing  such  great  dangers 
to  the  public  is  of  itself  a  case  of  negligence  making  its 
owners  liable  for  all  injuries  caused  thereby.  If  this 
argumentation  had  gained  general  acceptance  the  exten- 
sion of  the  liability  law  to  street  railways  would  have  been 
unnecessary.  Leaving  aside  the  last-named  consequence, 
the  course  of  development  sketched  above  shows  how  the 
functioning  of  the  safety-valve  concept  "negligence"  may 
by  means  of  projection  allow  social  influences  to  find  en- 
trance into  the  body  of  the  law. 

2.  The  concept  "wrongful"  is  sometimes  a  concealed 
element  in  several  other  very  comprehensive  and  fun- 
damental concepts,  as  for  instance  the  concept  "good 
faith,"  which  plays  so  large  a  part  in  the  law  of  posses- 
sion and  the  law  of  acquisition  of  things,  or  the  concept 
of  "notice." 

181  Residents  of  Vienna  probably  remember  quite  generally  how,  after 
several  distressing  accidents,  it  was  held  that  overhead  wires  for  tele- 
phones and  electric  cars  constituted  negligence  on  the  part  of  those 
maintaining  them.  Both  the  State,  which  ran  the  telephone,  and  the 
company  owning  the  street  railway  were  held  to  be  negligent. 

"2  §§  1297,  1299. 


412         WURZEL:  JURIDICAL  THINKING    [CH.X 

Not  he  alone  is  changeable  with  bad  faith  or  notice 
who  is  actually  acquainted  with  certain  circumstances 
that  should  prevent  his  acquisition  or  possession  of 
some  piece  of  personal  or  real  property,  but  also  he 
who  "ought  to  know,"183  meaning,  as  the  Civil  Code 
emphasizes,  wrongfully  fails  to  know.  Wherever  either 
of  these  alternatives  enters  into  the  concepts  above 
mentioned,  the  coefficient  of  uncertainty  or  varying 
possibility  of  the  concept  "wrongfulness"  enters  into 
them  also;  and  this  is  very  often  the  case  because  the 
two  alternatives  are  usually  treated  alike.184 

3.  Laws  and  lawyers  are  constantly  dealing  with  the 
concept  "cause."     Without  entering  on  this  subject  in 
detail,  I  shall  merely  call  attention  to  the  well-known 
fact  that  by  cause  is  not  meant,  in  law,  a  group  of  facts 
which  in  logic  must  necessarily  bring  about  a  certain 
occurrence;  and  conversely,  that   every  occurrence  that 
could  not  have  happened  without  a  certain  prior  occur- 
rence is  not   necessarily,  in  law,  a  consequence  of  such 
prior  occurrence.    Whether  a  juridically  relevant  causal 
connection  exists  between  two  occurrences  must  be  de- 
cided by  the  judge  for  each  specific  case,  and  in  doing  so 
he  has  at  his  disposal  a  broad  zone  within  which  he  can 
move  about  almost  at  discretion.    This  zone  grows  even 
broader  if  he  may  consider  as  cause  also  a  non-occurrence, 
such  as  an  omission.     In  this  manner  it  is  possible  to 
establish  duties,  or  abolish  them,  of  a  kind  that  had 
never  until  then  entered  anybody's  head. 

4.  The  concept  "causa"  in  the  sense  in  which  it  is  so 
very  important  in  connection  with  legal  transactions  and 
rescissions,  does  not  admit  of  exact  definition,  so  far  as  its 

18*  As  for  instance,  in  the  last  clause  of  section  25,  Austrian  Commer- 
cial Code. 

»•*  Comp.  supra,  note  161.  For  reasons  of  space  I  refrain  from  dis- 
cussing in  detail  the  functions  of  safety-valve  concepts  like  this  and 
others.  A  few  brief  hints  must  suffice. 


§27]  SAFETY-VALVE  CONCEPTS  413 

legal  effect,  not  its  mere  formally  logical  meaning,  is  con- 
cerned. Probably  nobody  would  undertake  to  enumerate 
exhaustively  all  the  cases  in  which  "condictio  sine  causa" 
(rescission  for  lack  of  consideration  or  other  "causa") 
is  permitted.  The  essence  and  principal  function  of  this 
concept  is  formed  by  the  tendency  in  law  to  maintain 
existing  relations  of  economic  power  and  to  prevent  un- 
reasonable enrichment  of  one  party  at  the  expense  of 
another.  However,  in  the  projection  of  this  concept 
ethical  and  other  considerations  as  wrell  as  economic 
ones  are  effective.  For  instance,  if  somebody,  under  the 
erroneous  belief  that  the  principle  of  the  canon  law 
"aut  due  aut  dota"  is  still  in  force,  has  given  a  marriage 
portion  to  a  female  seduced  by  him,  he  will  hardly  suc- 
ceed later  on  in  an  action  for  the  recovery  of  the  amount 
paid  on  the  ground  that  it  was  "an  unjust  enrichment," 
and  this  is  so  although,  according  to  a  well-known  rule, 
the  fact  that  his  mistake  was  a  mistake  of  law  would 
not  of  itself  prevent  him  from  recovering. 

5.  All  systems  of  private  law  contain  institutions 
and  concepts  the  special  purpose  of  which  is  to  prevent 
contracts  that  are  directly  immoral,  as  well  as  various 
other  legal  relations.  Such  are,  in  the  Roman  law, 
"exceptio  doli"  or  "turpis  causa,"  in  the  Austrian  Civil 
Code  the  conception  of  "unlawfulness"  of  a  contract.185 
The  use  of  language  such  as  this  implies  a  conscious 
approximation  to  an  ethical  estimate.  The  new  German 
Civil  Code  goes  further  in  this  direction  than  any  other. 
There  the  entire  "law  of  obligations"  is  dominated  by  the 
concept  "good  faith."  The  German  Code  even  authorizes 
in  express  terms  the  modification  of  the  results  of  strict 
legal  reasoning  by  moral  considerations.  The  famous 
section  826  gives  an  action  against  one  who  intentionally, 

»•»  The  courts  have  progressed  beyond  the  view,  once  maintained,  that 
section  878  OBGB  makes  voidable  unlawful  contracts  only. 


414         WURZEL:   JURIDICAL  THINKING    [Cn.X 

although  in  the  course  of  exercising  a  right,  does  damage 
to  another  in  a  manner  offending  against  good  morals. 

6.  Now  I  shall  add  to  this  list  a  little  illustration 
taken  from  criminal  law.  Within  the  last  few  years  it 
has  happened  frequently,  according  to  the  newspapers, 
that  the  courts  have  dismissed  charges  of  stealing  food, 
especially  bread,  by  hungry  persons.  As  this  has  not 
been  reported  as  occurring  in  earlier  years,  it  would 
seem  that  new  considerations,  originating  in  social  reform 
tendencies,  have  found  entrance  into  criminal  practice. 
The  gate  through  which  they  have  found  admission  is  in 
this  case  the  safety-valve  concept  "necessity."  A 
corresponding  projection  of  this  concept  furnished  the 
means  of  holding  that  hunger,  a  condition  now  con- 
sidered more  seriously  than  formerly,  constituted  a 
sufficient  excuse  for  stealing  a  loaf  of  bread.  Logically 
it  would  be  quite  plausible  to  extend  this  projection  a 
little  further,  so  as  possibly  to  cover  also  the  theft  of  a 
small  sum  of  money  in  order  to  relieve  one's  necessities. 
The  limitations  of  projection  therefore  are  movable. 

VII.    CONCLUSION 

§  28.  The  Prevalent  Theory  of  Interpretation  as  the 
Expression  of  a  Social  Need.  It  would  be  easy  to  give 
to  the  remarks  made  in  the  foregoing  chapters  a  wholly 
mistaken  meaning.  They  might  be  taken  for  a  feeble 
attempt  to  introduce  into  the  theory  and  terminology  of 
the  administration  of  law,  as  it  has  been  sanctioned  by 
the  usage  of  centuries,  an  innovation  claiming  to  create 
a  new  epoch.  Nothing  is  farther  from  my  mind  than  so 
arrogant  an  undertaking.  Nobody  can  be  more  remote 
than  I  from  the  Utopian  assumption  that  bodies  of 
thought  like  this  which  has  maintained  itself  through  the 
stress  of  time  and  found  practical  application  may 


§28]  A  SOCIAL  NEED  415 

consist  of  nothing  but  errors  and  misconceptions  that 
some  "discovery"  can  remove. 

The  fact  that  the  prevailing  theory  of  interpretation 
refuses  to  recognize  anything  but  formulated  legal  rules 
and  the  facts  and  circumstances  of  a  specific  case,  must 
from  the  point  of  view  of  the  positivistic  principle  of 
research  be  considered  itself  a  social  and  historical  fact 
standing  in  need  of  explanation  and  reduction  to  its 
cause,  rather  than  criticism  or  propositions  of  reform. 
The  same  is  true  regarding  the  observation  that  juridical 
thinkers  are  given  to  ignore  the  whole  intermediate 
field  of  ethical,  economic,  political,  and  other  social  ideas, 
as  well  as  the  forms  in  which  these  manifest  themselves, 
in  other  words  all  the  phenomena  of  projection;  or  the 
conception  that  the  whole  of  a  jurist's  task  is  comprised 
in  finding  the  true  and  correct  meaning  of  formulated 
rules  and  in  bringing  the  facts  of  each  specific  case 
either  directly  under  some  such  rule  or  under  the  logical 
conclusions  that  may  be  drawn  from  such  a  rule.  And 
finally  it  is  true  also  of  the  fact  that  a  legal  terminology 
corresponding  to  these  conceptions  has  been  familiarly 
used  for  centuries  and  still  prevails  although  many  of 
the  defects  of  this  theory  have  long  been  recognized. 
All  this,  however,  is  no  reason  why  one  should  not  as 
far  as  possible  become  conscious  of  the  peculiar  charac- 
teristics of  these  facts.  Some  of  these  characteristics 
have  been  suggested  in  this  work,  and  we  have  tried  to 
show  especially  the  places  where  the  prevailing  theory 
harmonizes  but  partially  with  the  real,  empirical,  de- 
monstrable actuality  of  things,  notwithstanding  the  fact 
that  modern  legal  science  likes  to  boast  of  its  purely 
positivistic  character.  Aside  from  the  satisfaction  of 
purely  scientific  curiosity,  our  suggestions  have  no  aim 
but  to  arouse  a  desire  for  explaining  and  justifying  such 
discrepancies.  We  all  know  that  it  is  sometimes  much 


416         WURZEL:   JURIDICAL  THINKING    [CH.X 

more  difficult  to  understand  that  regarding  some  subject- 
matter  there  is  something  which  needs  explanation 
than  to  find  the  answer  after  the  problem  has  been  com- 
prehended. That  is  the  case  regarding  juridical  thinking. 
From  the  first  day  when  he  begins  the  study  of  his  pro- 
fession the  lawyer  is  impressed  with  the  high  authority 
attaching  to  the  prevalent  theory  of  interpretation,  and 
what  is  even  more  important,  he  meets  so  constantly 
with  turns  of  phrase  and  forms  of  thought  corresponding 
to  this  theory  in  the  treatment  of  specific  cases,  that  by 
long  habit  that  wonder  which  is  the  source  of  all  inquiry 
and  conscious  understanding  becomes  totally  extin- 
guished. Habit  and  the  sense  of  being  certain  that 
among  lawyers  at  least  his  way  of  proceeding  will  not  be 
questioned  make  him  forget  to  ask  what  reality  there  is 
behind  such  often  used  expressions  as  intention  of  the 
legislator,  "ratio  juris"  and  the  like,  or  to  what  logical 
principle  the  numerous  bold  conclusions  and  inferences 
he  draws  may  correspond.  Soon  he  believes  without  test 
or  examination  in  their  truth,  especially  because  it  is 
quite  correct  that  such  expressions  and  forms  of  thought 
do  correspond  to  the  most  typical  among  the  cases  that 
come  before  him.  For  the  trouble  with  them  is  not  so 
much  their  essential  lack  of  verity  as  their  incomplete- 
ness, their  disregard  of  important  transition  zones.  Now, 
after  one  has  comprehended  this  inexactitude,  one  is 
confronted  with  a  question  that  demands  solution.  That 
question  is,  Why  are  these  inexact  forms  of  thought, 
phrases,  and  expressions  employed  in  legal  science? 

We  have  already  observed  that  it  is  easier  to  answer 
this  question  than  to  propound  it.  The  answer  is  found 
in  the  psychology  of  the  European  administration  of 
justice. 

When  an  injured  party  appeals  to  the  court  he  has  in 
mind,  as  the  reason  why  it  is  the  duty  of  the  judge  to 


§28]  A  SOCIAL  NEED  417 

interfere,  not  his  economic  advantage,  nor  the  principles 
of  ethics  or  similar  things.  Nor  does  he  think  of  the 
greater  personal  sagacity  and  the  greater  experience  of 
the  judge,  by  which  he  may  be  able  to  find  a  way  out 
of  a  tangle  of  conflicting  wills  even  where  the  parties 
cannot  see  a  solution.  A  European  judge  is  no  Oriental 
sage  who  is  to  point  out  the  right  course  to  the  parties  by 
virtue  of  his  own  higher  wisdom.  The  only  authority 
on  which  everybody  relies,  when  they  assemble  together, 
the  injured  party  and  the  wrongdoer,  as  well  as  the  judge, 
is  exclusively  and  solely  the  will  of  the  State,  embodied 
in  the  laws  that  have  been  broken.  This  being  so,  the 
judge  would  hardly  supply  the  wants  of  the  parties  if 
he  allowed  any  doubt  to  arise  but  what  these  commands 
of  the  State  are  really  sufficient  to  settle  every  conten- 
tion. Suppose  that  a  decision  were  to  read  something 
like  this:  We  cannot  be  quite  sure  what  the  legislator 
had  in  mind  regarding  the  solution  of  this  particular 
conflict,  or  whether  he  ever  imagined  that  one  would 
arise  in  this  particular  form;  but  making  use  of  the 
provisions  of  the  law  on  the  one  hand,  and  relying  on  the 
other  hand  upon  traditions,  economic  needs  of  the  com- 
munity, ethical  sentiments,  popular  customs,  and  so  forth, 
we  hold  that  the  proper  way  for  you  to  act  is  so  and  so. 
A  decision  of  that  sort  would  not  be  a  legal  decision  at  all. 
The  parties  would  simply  reply,  that  is  not  what  we 
have  asked  you  to  tell  us.  True,  some  will  deny  that 
a  clearer  conception  among  the  laity  regarding  the  true 
process  of  arriving  at  legal  (and  for  that  matter,  ethical) 
judgments,  and  the  influence  social  forces  exercise  thereon 
would  destroy  the  authority  of  such  judgments.186  The 
inexactitudes  of  the  theory  of  interpretation,  however, 
would  seem  to  prove  that  proposition. 

18«  See  Merkel,  in  Holtzendorff's  Enzyklopadie  der  Rechtswissenschaft, 
§  14,  in  controversy  with  Kirchmann  and  Ree  there  cited. 


418        WURZEL:  JURIDICAL  THINKING    [CH.X 

This  social  want  it  is,  rather  than  the  positive  recogni- 
tion of  the  true  condition  of  things,  which  has  imbued 
the  traditional  juridical  forms  of  thought  with  life  and 
created  the  theory  corresponding  with  them. 

This  social  want  requires  that  every  decision  shall 
take  on  the  appearance  of  a  necessary  consequence  of 
some  legal  rule,  arrived  at  by  strictly  logical  deduction 
and  subsumption.  It  makes  no  difference  how  many 
factors  other  than  the  commands  of  the  State  have  con- 
tributed to  the  result.  Even  analogy  must  clothe  itself 
in  the  guise  of  some  further  logical  consequence  of  a 
"latent"  legal  rule.  It  is  for  the  purpose  of  supplying 
this  social  want  to  the  greatest  extent  possible,  that  the 
"will  of  the  legislator"  was  deprived  of  every  semblance 
of  reality,  or  that  the  inquiry  into  the  intention  of  the 
parties  is  pursued  far  beyond  the  limits  where  the  possi- 
bility of  knowledge  ceases. 

§  29.  Legal  Truth.  Thus  we  have  come  to  an  addi- 
tional peculiarity  of  juridical  thinking  It  is  bound  to 
appear  strictly  logical  in  form,  even  where  in  the  nature 
of  things  it  cannot  really  be  so.  This  is  caused  by  a 
persistent  tendency  peculiar  to  lawyers,  of  overestimating 
the  degree  and  extent  of  certainty  arrived  at  both  regard- 
ing the  contents  of  the  legal  rule  and  the  state  of  facts. 

It  has  long  been  recognized  with  regard  to  the  facts, 
especially  the  external  facts,  making  up  the  "res  gestae" 
of  a  case,  that  legal  certainty  regarding  a  fact  is  satisfied 
with  less  than  complete  certainty  and  yet  treats  the 
facts  as  if  they  were  entirely  certain.  The  same  is  true 
of  all  other  branches  of  juridical  thinking.  The  sagacity 
of  a  lawyer  is  shown  especially  in  the  rinding  of  the  proper 
facts  on  which  a  judgment  may  be  based  (the  finding 
of  "indicia").  As  regards  the  use  and  interconnection  of 
such  facts,  juridical  thinking  must  be  called  bold  rather 
than  cautious  or  exact.  The  social  want  produces 


§29]  LEGAL  TRUTH  419 

self-deceptions,  assumptions  that  possibilities  are  proofs, 
suggestions  argument;  it  produces  inferences  that  are 
not  altogether  cogent  in  logic,  briefly  it  leads  to  repre- 
senting the  greater  probability  as  certainty. 

Now  it  should  not  be  objected  that  other  sciences,  the 
natural  sciences  and  even  mathematics,  will  work  with 
probabilities  where  certainty  cannot  be  attained,  and 
that  accordingly  this  is  not  a  peculiarity  of  juridical 
thinking.  In  those  other  sciences,  the  factor  of  prob- 
ability, the  possibility  of  error,  is  never  lost  sight  of;  the 
coefficient  of  uncertainty  is  carried  along  into  the  con- 
clusions from  uncertain  premises.  The  lawyer,  however, 
is  obliged  to  omit  it,  for  a  judgment  must  not  be  based 
on  hypothetical  facts,187  nor  on  hypotheses  regarding  the 
contents  of  the  law.  It  is  very  interesting  to  see  how  these 
special  conditions  have  generated  a  special  style,  a  special 
manner  of  expression. 

The  language  of  decisions  or  legal  arguments  is  rarely 
simple  and  uninvolved.  The  statement  of  a  fact  is  more 
frequently  made  by  cautious  circumlocution  than  by 
direct  assertion.  Flowers  of  expression  like  the  following 
have  grown  up  in  the  garden  of  jurisprudence  and  are  the 
specific  property  of  the  lawyer:  "We  must  assume  as 
proven";  "this  assertion  cannot  be  taken  as  justified"; 
"it  appears  to  be  without  foundation";  "we  cannot 
justly  doubt";  "the  conclusion  is  therefore  justified," 
etc.  Such  phrases  serve  to  render  the  difference  between 
the  real  degree  of  probability  and  that  required  for  legal 
purposes,  or  between  such  probability  and  the  cogency  of 
the  inference  drawn,  as  inconspicuous  as  possible.  Usu- 
ally they  amount  to  this,  that  in  place  of  direct  assertion 

187  That  is  the  reason  why  those  legal  institutions  have  been  found 
inconsistent  with  juridical  thinking,  and  are  therefore  likely  to  disappear, 
which  made  an  attempt  to  take  into  account  the  uncertainty  of  establish- 
ing thefacts.  Such  are  verdicts  of  "not  proven,"  or  mitigation  of  punish- 
ment on  account  of  doubt  regarding  the  facts. 


420        WURZEL:  JURIDICAL  THINKING    [Cn.X 

we  put  an  obligation  to  believe,  and  this  modifying  factor 
is  afterwards  disregarded.  No  small  part  of  the  training 
of  a  practical  lawyer  consists  in  becoming  accustomed 
to  such  forms  of  expression  and  processes  of  thought. 

What,  then,  is  meant  by  juridical  truth?  For  nobody 
will  deny  that  there  is  such  a  thing,  that  among  several 
decisions,  none  of  which  may  perhaps  be  a  strictly  logical 
consequence  of  a  legal  rule,  or  rules,  one  is  erroneous  and 
the  other  correct. 

Legal  truth  is  discovered  every  day  and  every  hour,  but 
its  peculiar  characteristic  is  that  it  does  not  necessarily 
coincide  with  historical  nor  with  psychological  nor  with 
any  other  sort  of  empirical  truth,  notwithstanding  the 
positivistic  tendency  dominant  in  jurisprudence.  It 
is  a  resultant  from  a  large  variety  of  components.  Among 
these  the  command  contained  in  the  law  may  be  the 
most  important  but  by  no  means  the  only  one.  Further- 
more, on  account  of  the  theoretical  (see  supra)  as  well  as 
practical  impossibility  of  comprehending  all  components 
as  calculable  quantities  and  of  taking  them  into  account 
as  such,  legal  truth  must  often  be  content  with  the  greater 
social  probability  without,  for  that  reason,  losing  its 
formal  character  of  juridical  truth.  The  above  proposi- 
tion cannot,  of  course,  be  employed  as  a  criterion  of 
juridical  truth,  but  it  may  be  used  to  justify  the  further 
consequence  that  there  is  but  one  way  of  bridging  the 
distance  between  some  empirical  truth  and  whatever 
may  be  the  greater  social  probability  in  a  given  case. 
Whenever  such  an  operation  is  necessary  it  can  only  be 
done  by  means  of  dialectical  logic.  It  is  evident,  there- 
fore, that  to  this  extent  a  rhetorical  and  dialectical 
element  is  inherent  in  juridical  thinking.188  It  is  not 

»•»  I  have  before  me  the  "Juristische  Blatter"  for  February  23,  1902. 
An  article  raises  the  question  whether  one  partnership  may  be  a  member 
of  another  partnership.  The  writer  admits  at  first  that  section  85  of  the 
Commercial  Code  deals  with  physical  persons  only  and  that  when  the 


§29]  LEGAL  TRUTH  421 

presumed,  however,  that  the  lawyer  is  conscious  of  this 
particular  function  of  his  intellect.  It  is  precisely  the 
naturalness,  the  apparent  self-evident  necessity,  that 
constitutes  the  convincing  power  of  those  components 
that  do  not  enter  into  the  conscious  reasoning  (these  com- 
ponents are  what  we  have  called  the  subject-matter  of 
projection).  Among  the  three  successive  courts  that  may 
*deal  with  a  case,  and  the  attorneys  arguing  for  different 
judgments,  ordinarily  each  is  convinced  of  the  indisput- 
able certainty  of  his  argumentation. 

On  the  other  hand,  these  subconscious  effects  of  com- 
ponents not  consciously  taken  into  account,  such  as 
ethical  sentiments,  etc.,  are  the  reason  why  legal  contro- 
versies so  often  seem  to  proceed  at  cross-purposes  and 
why,  with  an  undisputed  state  of  facts,  judgments  are  so 
often  in  doubt  and  can  rarely  be  foreseen  with  certainty. 

§  30.  Some  Random  Remarks  on  Bringing  Jurispru- 
dence into  Closer  Relation  with  other  Social  Sciences.  This 
properly  exhausts  the  subject  of  this  study.  I  shall  only 
add  a  few  random  observations. 

I  am  quite  aware  that  the  term  "social"  is  very  vague 
and  indefinite,  and  that  one  really  has  not  said  anything 
very  distinct  when  he  has  talked  about  social,  economic, 
ethical,  and  similar  influences  that  are  felt  "to  a  certain 
extent."  Yet  I  believe  that  it  is  not  altogether  useless 
merely  to  call  attention  to  the  actual  existence  of  such 
influences. 

Above  all  things,  such  a  suggestion  opens  to  juridico- 
sociological  research  a  large  field  hitherto  but  little 

Code  was  adopted  the  matter  was  not  thought  of.  Such  cases  are  due 
to  recent  economic  developments.  The  next  logical  step,  it  would  seem, 
ought  to  be  the  conclusion  that  we  need  not  look  further  in  the  Commer- 
cial Code.  That  conclusion,  however,  a  lawyer  will  avoid  it"  there  is  a 
possibility  of  doing  so.  The  writer,  therefore,  solves  the  problem  in  a 
rather  complicated  way  by  reference  to  the  words  "under  the  name  of 
their  firm"  in  section  111  of  the  Commercial  Code.  It  was  impossible 
for  him.  in  doing  so,  to  avoid  a  "petitio  principii"  in  his  argument,  which 
an  exact  logical  test  will  discover  at  every  step. 


422        WURZEL:  JURIDICAL  THINKING    [CH.X 

cultivated.  That  is  the  positive  examination  of  the  third 
component  element  in  juridical  thinking,  which  affects 
its  processes  side  by  side  with  knowledge  of  the  law  and 
recognition  of  pure  facts.  Among  the  various  forms 
assumed  by  this  problem  I  refer  again  to  one  touched 
upon  above.189 

After  what  has  been  said  we  must  assume  as  certain 
that  a  judge  cannot  remain  uninfluenced  by  sociak 
currents  of  sentiment  (and  volition)  if  he  is  to  perform 
his  functions  in  an  adequate  manner.  The  circumstance 
that  this  is  emphatically  denied  by  the  current  theory 
of  interpretation  (except  in  so  far  as  the  question  is 
simply  avoided),  and  that  according  to  this  theory  the 
judge  is  a  purely  reasoning  being,  a  sort  of  automaton 
producing  judgments,190  is  connected  with  the  normative 
point  of  view  of  that  theory,  which  treats  rules  of  inter- 
pretation as  if  they  were  legal  precepts  and  nothing 
more.  It  is,  of  course,  impossible  to  prescribe  to  the 
judge  what  kind  of  feeling  he  will  allow  to  influence  his 
decision,  even  if  that  feeling  is  to  refer  merely  to  social 
estimates. 

On  the  other  hand,  even  if  for  no  other  reason  than  on 
account  of  the  constant  insistence  on  the  greatest  possible 
independence  of  the  courts  as  a  constitutional  principle 
and  the  necessity  of  keeping  them  as  remote  as  possible 


wo  The  denial,  as  far  as  mere  form  goes,  of  all  independent  exercise  of 
volition  on  the  part  of  the  judge  extends  even  to  those  cases  where  it  is 
impossible  to  conceal  that  he  is  exercising  discretion,  because  the  law 
expressly  directs  that  he  should  do  so,  as  for  instance  in  fixing  alimony. 
The  formal  denial  is  apparent  in  these  ways: 

1.  By  classifying  all  such  cases  in  the  common  category  of  "equity," 
in  the  belief  that  they  can  be  reduced  to  a  single  common  principle.    See, 
for  example,  Pfaff-Hoffmann,  "Kommentar,"  page  208,  where  "equity" 
is  made  synonymous  with  "establishing  relative  equality." 

2.  By  representing  "equity"  as  something  entirely  different  from 
ordinary  juridical  thinking. 

'     3.  By  representing  such  "equity"  as  something  very  exceptional,  to 
come  into  play  only  where  the  statute  expressly  requires  it. 


§30]  CONCLUSION  423 

from  the  turmoil  of  business  life,  yet  it  is  clear  that  there 
are  some  influences,  even  influences  of  a  social  nature, 
which  are  not  compatible  with  the  juridical  way  of  think- 
ing. Now  if  lack  of  bias  in  the  judge  means  that  he  is  to 
be  independent  of  certain  social  influences,  but  not  of  all 
of  them,  then  the  question  arises:  which  influences  are 
to  be  eliminated  ?  An  illustration  may  make  this  problem 
more  realistic. 

In  the  Court  of  Administration  [Verwaltungs-Ge- 
richt]  a  lawsuit  was  recently  determined,  in  which 
the  complaint  was  based  on  the  proposition  that  a  cer- 
tain tax  levy  was  invalid.  The  levy  was  made  in  accord- 
ance with  section  14  of  the  [Austrian]  Constitution 
[which  permits  the  Government,  in  certain  emergencies, 
to  collect  taxes  without  previous  grant  from  Parliament] . ' 
It  was  complained  that  there  had  been  an  obstruction 
in  the  House  of  Representatives  against  the  necessary 
grant  of  money.  It  was  claimed  that  certain  conditions 
necessary  to  authorize  such  action  had  not  existed,  and 
the  principal  issue  was  whether  the  court  was  authorized 
at  all  to  enter  into  the  question  of  the  validity  of  an 
executive  order  having  the  force  of  law.  Under  the 
Constitution,  the  courts  may  question  the  validity  of  exe- 
cutive orders,  but  not  of  statutes.  The  issue  was  not 
expressly  provided  for  in  the  Constitution,  and  it  would 
be  doubtful,  to  say  the  least,  what  was  in  the  minds  of 
the  legislators  in  1867,  when  the  instrument  was  adopted. 

Let  us  suppose  now  that  one  of  the  judges  was  in- 
clined to  hold  with  the  plaintiff  because  he  maintained 
the  view  which  was  best  founded  historically.  But  that  at 
the  same  time  this  judge  realized  that  to  declare  the 
executive  emergency  order  invalid  would  mean  the  worst 
sort  of  conflict  between  the  courts  and  the  conditions 
necessary  for  the  very  existence  of  the  State,  and  that 
public  order  would  be  thrown  into  chaos.  Would  it  be 


424         WURZEL:   JURIDICAL  THINKING    [Cn.X 

unjuridical,  in  such  a  case,  to  dismiss  the  complaint? 
Would  it  be  possible  to  write  an  opinion  containing  these 
reasons  for  the  dismissal,  or  would  that  show  bias  on  the 
part  of  the  judge?  Is  it  socially  permissible  for  the  courts 
to  close  their  eyes  to  such  considerations  and  thereby 
saw  off,  so  to  speak,  the  limb  on  which  they  are  sitting? 
In  other  words,  is  it  proper,  and  if  so  to  what  extent, 
to  erect  into  a  principle  of  the  administration  of  law  the 
conscious  consideration  of  questions  growing  out  of  the 
fundamental  necessities  of  life  within  a  State? 

Legal  science  would  succeed  in  stopping  the  principal 
breach  in  its  ramparts  through  which  uncertainty  of  the 
law  (or  rather  uncertainty  in  its  administration)  may 
enter,  if  this  and  many  other  problems  could  be  solved 
in  proved  harmony  with  social  evolution,  and  not  merely 
on  the  basis  of  subjective  feeling ;  if  the  social  forces  and 
value  judgments,  which  are  now  concealed  and  operating 
without  being  consciously  adopted,  could  be  transformed 
into  clearly  conceived  logical  formulas  of  definitely 
limited  effectiveness.  That,  however,  is  a  matter  for 
future  days.  To  be  sure,  in  part  such  transformation  is 
going  on  all  the  time  whenever  a  new  legal  rule  is  made, 
for  every  legal  institution  or  principle  is  really  an  attempt, 
more  or  less  successful,  to  express  a  social  tendency  in 
logical  form.  However,  this  is  never  accomplished  but 
very  imperfectly,  by  persistent  experiments  that  are 
often  failures,  and  in  the  minutest  degrees  only.  For 
to  make  laws  is  a  matter  of  political  action  rather  than 
scientific  labor. 

However,  numerous  sciences,  all  subsidiary  to  the 
science  of  sociology,  are  engaged  in  laying  down  the 
broad  outlines  of  that  future  age  when  men  will  know 
better  than  at  present  the  process  of  social  evolution,  the 
origins,  connections,  and  importance  of  the  various  par- 
ticular phenomena  of  social  life.  I  am  returning  to  the 


§30]  CONCLUSION  425 

beginning  (compare  Introduction) :  legal  science  also  will 
have  to  reap  her  harvest  in  harmony  and  union  with  the 
work  and  progress  of  the  other  social  sciences. 

There  is  an  erroneous  idea,  often  defended  but  never- 
theless plainly  mistaken,  according  to  which  legal 
science  is  to  seek  salvation  in  a  more  profound  and 
refined  knowledge  of  individual  psychology.  However, 
the  true  reasons  for  the  uncertainty  we  meet  with  in  the 
investigation  of  internal  facts  is  caused  by  other  things 
than  our  ignorance  of  psychological  data.  The  contrary 
is  true:  the  psychological  tools  with  which  jurispru- 
dence operates  even  to-day  are  often  too  nicely  differ- 
entiated. They  are  like  razors  made  so  keen  that  they 
no  longer  cut. 

No  matter  how  firmly  one  may  be  convinced  that  a  rich 
harvest  is  to  be  gleaned,  it  would  be  a  delicate  under- 
taking at  this  early  stage  to  forecast  in  detail  wrhat 
benefits  legal  science  will  derive  from  a  closer  alliance, 
practical  and  theoretical,  with  the  social  sciences.  On 
account  of  the  difference  between  the  points  of  view 
of  jurisprudence  and  those  other  branches  of  knowledge 
(the  latter  being  explicative,  the  former  normative), 
there  can  be  but  an  indirect  appropriation  of  results 
instead  of  direct  comparison.  Moreover,  the  present 
condition  of  the  social  sciences,  which  are  to  a  great 
extent  still  in  a  state  of  fermentation  and  development, 
or  occasionally  in  a  merely  embryonic  condition,  is  the 
reason  why  but  a  small  part  of  their  doctrines  have 
achieved  that  certainty  and  exactitude  which  lawyers 
require  in  order  to  utilize  them  as  a  conscious  part  of  their 
intellectual  processes. 

Nevertheless  we  may  safely  venture  to  prophesy  that 
even  at  the  present  stage  of  the  social  sciences  the  horizon 
of  the  lawyer  will  be  widened  by  a  more  intimate  ac- 
quaintance with  them,  so  that  his  attitude  towards  social 


426        WURZEL:  JURIDICAL  THINKING    [Cn.X 

life  may  be  raised  above  his  mere  personal  experience, 
limited  of  necessity  by  narrow  local  and  temporal 
bounds,  into  a  greater  universality  and  stability.  Un- 
doubtedly the  administration  of  the  law  will  gain  thereby 
both  as  regards  certainty  and  true  scientific  character, 
while  at  present  the  only  guaranty  of  a  certain  measure 
of  uniformity,  as  regards  the  subject-matters  of  projec- 
tion, is  to  be  found  in  the  approximate  uniformity  of  the 
course  of  study,  career,  social  and  economic  condition 
of  all  lawyers.  I  shall  not  hesitate  to  illustrate  this  very 
general  proposition  by  a  little  example. 

A  enters  into  a  contract  with  B,  by  which  he  undertakes 
to  act  as  guardian  of  the  latter's  children  after  their 
father's  decease,  on  condition  that  he  is  to  retain  as  his 
permanent  commission  thirty  per  cent  of  the  net  annual 
income  of  the  estate  of  his  wards.  Is  such  a  contract 
valid?  Many  people  will  feel  that  it  is  against  good 
morals,  for  to  be  willing  to  act  as  guardian  for  orphans 
is  one  of  the  duties  of  a  citizen.  Others  will  have  no 
such  scruples.  In  the  former  we  should  recognize  the 
attitude  of  mind  characteristic  of  the  agricultural  and 
conservative  element,  in  the  latter  that  of  commercial 
and  politically  liberal  persons. 

However,  if  we  are  to  analyze  the  case  scientifically, 
we  should  start  from  the  fact,  well  known  to  ethical  sci- 
ence, that  a  feeling  of  disapprobation  similar  to  that  which 
arises  in  view  of  this  transaction  has  been  noticeable, 
historically,  whenever  a  function  that  had  theretofore 
been  exercised  as  a  public  duty  or  honorific  office  became 
degraded  so  as  to  be  performed  for  pay.  For  originally 
it  was  only  for  labors  of  the  most  menial  kind  that  pay 
was  accepted.191  If,  however,  the  course  of  economic 

i"  Comp.  the  history  of  compensation  for  advocates,  in  Rome,  and 
even  to-day  in  France.  Comp.  also  the  fact  that  compensation  for  the 
higher  forms  of  services  is  called  by  different  names  from  ordinary 
wages  (honorarium,  salary,  etc.).  and  that  these  special  names  are  sugges- 


§30]  CONCLUSION  427 

development  tends  in  that  direction,  the  original  feeling 
of  disapprobation  will  not  be  able  to  prevent  the  suc- 
cessive inclusion  of  higher  and  higher  kinds  of  labor 
among  those  for  which  wages  are  paid  and  accepted. 
The  question  will  naturally  arise,  therefore,  whether  at 
the  present  time  generally  the  tendency  towards  extend- 
ing the  number  of  functions  for  which  pecuniary  com- 
pensation may  be  accepted  is  increasing  or  decreasing, 
and  whether  there  are  existing  economic  conditions  that 
make  it  proper  to  add  the  duties  of  a  guardian  to  those 
which  may  be  exercised  for  hire.  In  this  way  one  may 
gain  a  foundation  from  which  to  judge  of  the  contract 
set  forth  above  in  its  relation  to  general  social  develop- 
ment. 

No  doubt,  if  legal  science  is  brought  into  closer  con- 
tact with  the  rest  of  the  social  sciences,  it  wall  be  able  to 
utilize,  for  its  technical  purposes  in  drafting  statutes  as 
well  as  for  those  of  legal  theory,  a  number  of  concepts, 
which  have  already  been  scientifically  elaborated.192 

tive  of  different  appreciations,  and  sometimes  even  carry  with  them 
different  legal  treatment.  See  on  the  whole  matter  Wundt's  "Ethik." 

M*  At  the  present  time  the  opposite  tendency  is  rife  among  lawyers, 
the  tendency  of  exclusiveness.  One  of  the  indications  of  this  is  the  fact 
that  legal  science,  and  also  as  its  various  special  branches,  are  in  the 
habit  of  making  up  the  concepts  by  which  they  master  their  subject- 
matterwithout  reference  to  linguistic  usage  or  the  custom  of  other  sciences. 
We  need  not  deny  that  in  by  far  the  greater  number  of  cases  this  cannot  be 
otherwise.  However,  it  has  important  drawbacks,  which  are  often  over- 
looked to  such  an  extent  that  terms  are  frequently  used  in  quite  arbi- 
trary fashion  in  order  to  bring  about  an  apparent  unity  of  thought. 
Distinctions  between  terms  used  in  a  narrower  and  in  a  wider  sense  are 
particularly  characteristic  of  legal  usage.  Similarly,  we  distinguish 
between  estate,  credit,  and  the  like  in  a  legal  and  the  same  terms  in  an 
economic  or  popular  sense,  between  a  merchant  in  the  meaning  of  the 
Commercial  Code  and  within  that  of  the  tax  laws  or  the  Industrial  Code. 
"Document"  means  different  things  in  private  law,  in  the  act  relating  to 
fees,  and  in  the  sense  in  which  the  term  is  used  in  other  sciences.  Real 
life,  however,  knows  but  one  kind  of  merchant,  or  estate,  or  document; 
by  such  distinctions,  the  connection  between  law  and  life  and  legal  and 
other  sciences  is  often  quite  needlessly  severed.  Yet  the  necessity  of  pro- 
jection of  these  concepts  is  not  obviated,  although  it  is  rendered  more 
difficult.  However,  similar  tendencies  towards  exclusiveness  may  be 


428         WURZEL:   JURIDICAL  THINKING    [CH.X 

Thus  it  will  be  possible  for  those  intrusted  with  the 
administration  of  the  law  to  profit  from  all  the  results 
which  these  other  sciences  have  already  produced.  For 
instance,  while  the  Romans  had  no  way  of  defining 
the  various  things  subject  to  the  right  of  property,  except 
by  enumerating  those  exceptional  ones  in  which  nobody 
could  have  property,  like  air,  light,  water  in  its  natural 
state,  and  so  forth,  we  may  very  well  utilize  for  such  a 
purpose  the  concept  of  "economic  goods,"  as  it  has  been 
elaborated  by  the  science  of  economics. 

The  most  important  point  of  all,  however,  is  that  by  the 
study  of  sociology  lawyers  will,  even  more  than  by  that  of 
legal  history  or  comparative  jurisprudence,  rise  above 
the  stage  where  they  are  mere  adepts  in  the  art  of  render- 
ing obedience.  Instead,  they  will  cease  to  conceive  of  the 
law  as  a  mere  naked  command  and  learn  to  comprehend 
its  nature  as  a  social  phenomenon. 

And  we  have  a  right  to  ask  that  this  should  be  so. 
A  jurist  in  ancient  classical  times  was  expected  to  know 
not  merely  the  letter  of  the  statutes  but  also  their  mean- 
ing and  real  significance.  Of  a  modern  lawyer  we  should 
demand  even  more:  knowledge  of  the  soil  from  which 
every  legal  institution  must  draw  its  sustenance,  and 
an  acquaintance  with  the  social  functioning  of  each 
institution. 

Such  are  the  tasks  of  sociological  jurisprudence. 

found  in  other  sciences  likewise.  They  are  the  obverse  of  the  tendency 
towards  harmonious  completeness.  Thus,  for  instance,  economists 
might  save  themselves  the  writing  of  many  ponderous  tomes  on  the  reason 
for  interest  on  capital,  if  they  did  not  obstinately  refuse  to  consider  the 
distribution  of  power  over  economic  goods  which  is  effected  in  the  form 
of  legal  rules. 


ALVAREZ:   METHODS  FOR  CODES        429 


CHAPTER  XI 
METHODS  FOR  SCIENTIFIC  CODIFICATION 

BY  ALEXANDRE  ALVAREZ  1 
§1.   INTRODUCTION 
I.    REFORMS  IN  THE  STUDY  OF  PRIVATE  LAW 

§  2.  DEFECTS  IN  THE  PRESENT  SYSTEM  OF  TEACHING: 
(1)  DISTRIBUTION  OF  STUDIES;  (2)  FUNDAMENTAL 
STUDIES.  —  §  3.  THE  STUDY  OF  THE  HISTORY  OF  LAW:  (1) 
CONCEPTION  AND  METHOD  OF  FLACH;  (2)  THE  HISTORY 
OF  INSTITUTIONS;  (3)  SOCIAL  ENVIRONMENT.  —  §  4.  THE 
STUDY  OF  POSITIVE  LAW:  (1)  RECONSTRUCTION  OF  CIVIL 
INSTITUTIONS;  (2)  METHOD  OF  RECONSTRUCTION;  (3) 
OLD  AND  NEW  METHODS  CONTRASTED;  (4)  RESULTS.— 
§5.  INTERPRETATION  OF  PRIVATE  LAW:  (1)  FUTURE 
FUNCTION  OF  INTERPRETATION;  (2)  FUTURE  METHOD  OF 
INTERPRETATION;  (3)  THE  METHOD  IS  OBJECTIVE.—  §  6. 
THE  STUDY  OF  COMPARATIVE  LAW:  (1)  VARIOUS  OPINIONS 
OF  THE  OBJECT  OF  COMPARATIVE  LAW;  (2)  WHEREIN 
THESE  CONCEPTIONS  FAIL;  (3)  TRUE  AIM  AND  METHOD.— 
§7.  TRUE  BASIS  AND  OBJECT  OF  JURISPRUDENCE:  (1) 
JURISPRUDENCE  AS  AN  IDEAL;  (2)  JURISPRUDENCE  AND 
INTERNATIONAL  LAW;  (3)  JURISPRUDENCE,  LEGISLA- 
TION, AND  JUDICIAL  DECISIONS. 

1  ["Docteur  en  droit,"  Law  School  of  the  University  of  Paris;  "dip- 
lome"  of  the  Ecole  des  Sciences  Politiques;  Professor  of  Comparative 
Civil  Law,  University  of  Santiago,  Chile;  Counselor  to  the  Legation 
of  Chile  at  Paris;  Associate  Secretary  at  the  Pan-American  Congress 
of  1902.  The  translation  is  from  "Une  nouvelle  conception  des  etudes 
juridiques  et  de  la  codification  du  droit  civil"  (Paris,  1904),  pp.  1-2; 
147-232.  The  translator  is  Layton  B.  Register.} 


430       ALVAREZ.   METHODS  FOR  CODES  [CH. XI 
II.    THE  FUTURE  OF  CODIFICATION 

§8.  PRINCIPLES  UNDERLYING  FUTURE  CODIFICATION: 

(1)  THEORIES  AS  TO  THESE;    (2)  THE  SPANISH  CIVIL  CODE; 
(3)  THE  GERMAN  CIVIL  CODE;    (4)  THE  PROBLEM  OF  THE 
UNDERLYING   PRINCIPLES;  (5)   LEGISLATIVE   POWERS  OF 
THE  JUDICIARY  AND  OF  CERTAIN  GROUPS;    (6)  CODIFICA- 
TION BY  INSTITUTION  RATHER  THAN  SUBJECT;   (7)  OTHER 
UNDERLYING  PRINCIPLES;   (8)  THOSE  TO  BE  REJECTED.  — 
§9.  GOVERNING    IDEAS    OF    FUTURE    CODIFICATION:     (1) 
REFORMS   INTRODUCED    BY   THE    GERMAN   CIVIL    CODE; 

(2)  LIMITATIONS  OF   THE  GERMAN  CODE.— §10.  ORIGIN 
OF    THE    CHANGES    IN    UNDERLYING    PRINCIPLES    AND 
GOVERNING     IDEAS.  —  §  11.  METHOD     OF     REVISION:     (1) 
METHOD  OF  DRAFTING  THE  SPANISH  AND  GERMAN  CIVIL 
CODES;    (2)  CONCLUSIONS;    (3)  CONGRESS  OF  LATIN  COUN- 
TRIES ON  COMPARATIVE  LEGISLATION. 


Introduction 

§  1.  Political  and  legal  science  have  an  undeniable 
influence  upon  the  destinies  of  nations.  They  train  both 
the  governing  and  governed  classes.  Does  not  the  latter 
class,  through  the  vote,  necessarily  participate  in  the 
conduct  of  a  country's  affairs?  Does  not  its  state  of  mind 
synthetically  constitute  public  opinion? 

The  direction  to  be  imparted  to  the  study  of  these 
sciences  is,  therefore,  a  matter  of  prime  importance 
from  a  social  point  of  view.  That  education  in  these 
subjects  may  produce  every  possible  advantage,  it 
should  be  inspired  by  the  needs  and  tendencies  of  our 
time,  for  every  social  science  changes  with  social  con- 
ditions themselves.  This  has  been  understood  with 
respect  to  the  study  of  the  social  sciences  in  general. 
The  study  of  codified  private  law  stands  alone  as  the 


§1]  INTRODUCTION  431 

exception.  It  is  frequently  said  that  codified  private 
law  is  not  progressive;  or  that,  even  were  it  so,  its 
progress  cannot  be  given  consideration,  since  a  code 
must  always  be  applied  according  to  its  letter,  so  long 
as  it  remains  unmodified  by  legislation. 

In  all  countries  of  codification,  a  widening  variance 
is  remarked  between  the  principles  as  contained  in  the 
code  and  their  application  by  the  courts,  and  between 
their  application  and  the  social  needs  of  modern  life. 
Law  no  longer  conforms  with  justice;  at  times  it  even 
thwarts  justice.  Are  we  to  wonder,  then,  at  the 
diminishing  prestige  of  legislators  and  judges? 

Is  the  situation  different  in  countries  where  the  law  has 
not  been  codified?  If  so,  should  we  blame  codification? 
Or  should  we  rather  attribute  the  condition  to  a  faulty 
method  of  interpretation  and  of  application  of  codified 
law?  May  not  both  reasons  be  equally  true? 

In  another  place,  we  have  examined,  along  general 
lines,  the  social  transformations  of  the  1800s,2  and  their 
influence  upon  the  law  in  spite  of  codification.  These 
transformations  have  imparted  to  legal  relationships 
qualities  which  are  the  very  contrary  of  those  which 
they  possessed  when  the  Napoleonic  Code  appeared. 
Relationships  have  become  multifarious,  confused, 
and  fluid  in  the  extreme;  in  law  they  tend  to  become 

-  [The  author  classifies  these  social  transformations  briefly  as  follows: 
Legal  institutions  or  their  underlying  principles  and  governing  ideas 
have  met  with  three  classes  of  influence  since  the  Napoleonic  Code: 
political  fact,  economic  fact,  and  theory.  Political  influences  have  been 
the  weakening  of  the  sovereignty  of  the  State  and  the  strengthening  of 
the  democratic  form  of  government;  the  economic  influence  has  been  the 
industrial  expansion  of  the  1800s,  which  has  altered  the  relative  import- 
ance of  real  and  personal  property  and  given  rise  to  class  consciousness; 
theory  has  been  felt  through  the  ideas  of  social  solidarity  and  of  democ- 
racy. Cf.  Alvarez,  "Une  nouvelle  conception  des  etudes  juridiques 
et  de  la  codification  du  dioit  civil,"  pt.  ii,  chaps,  v-x,  pp.  111—146,  trans- 
lated in  "Progress  of  Continental  Law  in  the  Nineteenth  Century" 
(Boston,  1917),  being  vol.  xiof  the  Continental  Legal  History  Series. — 
TRANSL.] 


432      ALVAREZ:   METHODS  FOR  CODES  [CH.XI 

international  and  social,  and  to  receive  more  and  more 
the  mark  of  public  law.3 

The  modifications  which  the  civil  law  has  undergone, 
in  spite  of  the  survival  of  its  text,  are  consequently 
enormous.  Its  limits,  underlying  principles,  and  govern- 
ing ideas  have  altered;  many  of  the  institutions  which  the 
Code  embraced  have  been  withdrawn  from  it  to  dis- 
appear entirely,  or  to  be  incorporated  as  a  part  of  public 
law,  or  to  form  the  subject  of  special  enactments,  based 
upon  principles  and  ideas  different  from  those  of  the 
Code.  New  institutions  have  been  added ;  others  still  — 
and  these  form  the  bulk  —  have  undergone  but  partial 
modification  and  are  regulated  to-day  by  the  same  ideas 
which  inspired  the  Code  and  by  others  of  newer  and 
different  origin.  Want  of  agreement,  therefore,  marks 
these  various  elements,  furnished,  some  by  antiquated 
legislation,  others  by  the  statutes,  customs,  and  judicial 
legislation  of  a  new  age.  New  solutions,  not  those  fur- 
nished by  a  strict  adherence  to  the  Code,  should  be 
found  to-day  for  the  great  problems  of  law.4 

Our  conclusions,  in  the  above-mentioned  study,  were 
three : 

(a)  While  the  legislator  provided  no  machinery  to  accom- 
modate the  law  to  the  practical  exigencies  of  life,  fresh 
legislation,  text-writers,  and  courts  are  to  a  large  degree 
realizing  this  harmony.  Codification,  then,  has  not 

» In  spite  of  the  conflict  between  the  point  of  view  of  the  actual  state 
of  society  and  that  of  the  period  of  the  Code,  and,  consequently,  that  of 
the  Old  Regime,  society  to-day  tends  to  approach  that  of  the  Old  Regime 
in  the  continually  increasing  role  of  the  State,  which  subjects  society 
to  a  police  regulation  similar  to  that  of  the  older  order;  the  increasing 
frequency  of  association,  above  all  of  the  associations  of  the  laboring 
classes,  the  nature  and  purpose  of  which  make  them  resemble  in  more 
than  one  particular  the  guilds  of  the  Old  Regime,  is  yet  another  mark 
of  similarity. 

«  The  indirect  changes  which  the  law  has  undergone  have  escaped 
even  those  who  have  fully  noted  the  importance  of  the  new  legislation 
from  the  point  of  view  of  its  new  principles.  Cf.  especially  Leroy,  "Le 
Code  civil  et  le  droit  nouveau"  (Paris,  1904). 


§1]  INTRODUCTION  433 

checked  the  development  of  law  as  is  widely  believed. 
It  has  merely  interposed  an  obstacle,  concealing  it. 
This  fact  has  but  provoked  the  discord  between  the  Code 
and  society. 

(b)  Contrary   to   the  belief  of   many  distinguished 
writers,5  the  problem  is  not  merely  to  find  a  system  which 
will  permit  the  legal  text  to  be  made  more  pliant  so  that  it 
may  meet  the  new  requirements  of  life,  but  also  to  dis- 
cover a  method  of  research  by  which  the  student  may,  first, 
recognize  the  changes  that  have  taken  place  to  date 
in   legal   institutions   and   sketch   their   true   historical 
character,  and  then  bring  together  the  objective  guides 
to  interpretation  proper  for  solving  in  theory  and  prac- 
tice the  problems  that  may  arise  in  the  future. 

(c)  A  new  system  of  codification  should  be  found  that 
will  make  it  possible  to  keep  private  law  in  tune  with 
the  changes  that  are  going  on  in  society.     Such  a  system 
should  place  no  obstacle  in  the  way  of  evolution,  as  the 
present  system  does,  or  conceal   the  evolution;    yet  it 
must  leave  legal  relationships  as  secure  as  under  the 
Napoleonic  Code. 

^  I.  REFORMS  IN  THE  STUDY  OF  PRIVATE  LAW 
§  2.  Defects  in  the  Present  System  of  Teaching.  A 
new  era  must  begin  in  the  teaching  of  private  law.  The 
legal  education  of  future  generations  must  differ  from 
that  of  the  past.  Jurists,  lawyers,  and  judges  must  be 
prepared  to  solve  satisfactorily  the  problems,  increas- 
ingly numerous  and  complex,  to  which  society  gives  rise. 
A  reform  of  legal  education  is  imperative;  its  direction, 
its  tendencies,  its  methods  must  be  changed. 

The  present-day  teaching  has  the  triple  defect  of  being 
empirical,  disjointed,  and  incomplete. 

5  [Cf.  the  critique  by  Alvarez,  translated  in  Continental  Legal  History 
Series,  vol.  xi  (supra  note  2). — -TRANSL.] 


434       ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

It  is  empirical  because,  once  it  steps  outside  the  text 
of  the  statute,  it  becomes  imbued  with  the  spirit  of 
metaphysics  and  logic,  neglecting  the  realities  of  life. 

It  is  disjointed  because  it  is  subdivided  into  numerous 
branches  studied  separately  and,  at  times,  presented 
as  opposed  to  each  other,  as  for  instance  public  and 
private  law.  This  method  prevents  the  perception  of 
legal  institutions  in  their  entirety  and  in  their  true 
aspects,  and  the  understanding  of  their  inward  nature. 

It  is  incomplete  from  several  points  of  view.  In  the 
first  place,  the  student  is  limited,  in  his  investigation  of 
each  branch  of  private  law,  to  a  more  or  less  general 
commentary  of  the  text  of  the  law;  the  doubts  which 
the  law  leaves,  and  the  new  problems,  born  of  affairs, 
are  noted ;  these  problems  are  solved  by  the  traditional 
rules  of  interpretation  and  by  reference  to  the  estab- 
lished doctrines  of  the  courts.  The  really  living  and 
progressive  study  of  law,  as  a  science  founded  upon 
observation,  has  been  wholly  neglected.  The  funda- 
mental ideas  that  have  guided  it,  their  nature,  the  more 
or  less  profound  transformation  which  they  have  suffered 
under  the  direct  and  indirect  influence  of  social  facts,  the 
modifications  of  legal  institutions  due  to  the  same  causes, 
the  mode  of  adjusting  them  to  practical  needs, — -all 
these  have  been  passed  over  in  silence. 

In  the  future,  detailed  study  of  an  expositive  sort 
should  be  excluded  and  replaced  by  generalizations 
fitted  to  leave  clear-cut  impressions  of  the  nature  of  the 
legal  institutions  examined.  Briefly,  the  study  of  law 
must  be  made  more  positive  and  objective. 

How  shall  the  subject  of  private  law  be  distributed 
so  as  to* accomplish  this  end?  What  shall  be  the  basis 
and  methods  of  the  new  instruction?  These  are  the 
difficulties  which  we  believe  must  be  cleared  away,  if 
we  are  to  remedy  the  present  unfortunate  state  of  affairs. 


§2]  DEFECTS  IN  TEACHING  435 

1:  DISTRIBUTION  OF  STUDIES.  Legal  relationships 
being  to-day  complex  and  confused  where  in  the 
past  they  were  simple  and  well-defined,  all  branches 
of  the  law  (each  one  of  which  in  fact  treats  of  but  one 
of  the  various  aspects  of  legal  relationships)  should  be 
grouped  and  studied  in  one  master  branch,  positive  law. 
Here  will  be  examined  in  a  general  way  the  totality  of 
legal  relationships  under  their  various  aspects,  as,  for 
instance,  national  or  international,  public  (constituting 
administrative  law)  or  private  (constituting  civil  law), 
economic  (commercial  law,  labor  and  industrial  legis- 
lation), or  social. 

The  principal  institutions,  already  described  in  the 
course  on  positive  law,  must  next  be  taken  up  separately 
in  their  general  features:  as  the  law  of  the  family,  prop- 
erty, companies  and  associations,  the  general  law  of 
contracts,  contracts  of  hire  of  services,  etc. 

Yet  a  third  category  of  studies  should  embrace  all 
those  branches  of  the  law  relating  to  a  single  order  of 
phenomena,  so  as  to  escape  the  defect,  so  evident  to  date, 
of  subdividing  the  study  of  the  same  class  of  legal  facts. 
In  this  way  the  student  would  examine  in  one  group, 
in  a  course  covering  several  years,  or  in  several  courses 
directed  by  a  number  of  instructors  inspired  by  the  same 
ideal  of  unity,  all  phenomena  of  the  same  general  nature: 
political,  economic,  or  social.  Each  would  be  followed 
through  all  its  manifestations:  in  juristic  writings, 
in  statutes  and  in  judicial  decisions,  in  actual  life,  and 
in  the  usages  which  necessity  has  created.  Such  a  study 
would  emphasize  the  mutual  dependence  of  law  and 
political  science,  for  they  are,  indeed,  both  of  the  same 
general  order.  Constitutional  law  would  be  studied 
as  a  part  of  political  phenomena,  as  observed  in  legisla- 
tion and  practice,  and  in  its  relation  to  certain  parts  of 
administrative  law.  The  rest  of  administrative  law 


436      ALVAREZ:   METHODS  FOR  CODES  [CH.XI 

would  be  merged  in  positive  law  and  the  study  of  separate 
institutions.  Economic  facts  would  be  studied  as  a 
group,  the  student  investigating  the  economic  aspect 
of  legal  institutions  in  close  relation  with  political  and 
social  economy.  So  would  it  be  possible  to  realize  the 
importance  of  each  group  of  phenomena,  its  scope,  its 
influence  upon  legal  institutions,  and  the  direction 
towards  which  it  is  compelling  social  evolution.  The 
results  of  such  studies  would  be  truly  useful  to  juris- 
prudence in  general.' 

Lastly,  the  history  of  law  should  be  studied  in  its  true 
aspect  and  in  its  full  signification.  It  should  embrace 
the  history  of  the  legal  institutions  of  the  Romans  and 
comparative  civil  legislation.6 

2:  FUNDAMENTAL  STUDIES.  Of  -  the  studies  just 
enumerated,  the  most  fundamental  are,  in  our  opinion, 
the  history  of  law,  positive  law,  and  comparative  civil 
legislation.  They  should  be  gone  into  with  thorough- 
ness, adopting  the  method  applied  in  the  social 
sciences  in  general,  that  of  observation. 

Why  have  we  believed  these  three  subjects  to  be  the 
foundations  of  a  legal  education?  Can  the  method  of 
observation  be  applied  to  them?7 

•  To  secure  the  maximum  profit  the  student  should  also  do  practical 
exercises.  But  these  should  be  understood  very  differently  from  at 
present.  Students  should  investigate  the  usefulness  of  certain  laws  or 
institutions,  their  advantages  or  disadvantages,  their  regulation  and 
their  results  in  other  countries.  They  should  also  be  given  experience 
in  drafting  laws  of  a  general  character,  giving  special  attention  to  defining 
the  subject-matter,  and  to  the  different  interests  to  be  considered  in  its 
regulation,  and  noting  the  difficulties  which  the  legislator  must  overcome 
and  the  ideas  which  are  to  govern  the  matter.  This  sort  of  work  would 
be  attractive,  and  little  by  little  the  student  will  gain  breadth  of  mind; 
he  will  also  become  more  conscious  of  the  changing  nature  of  legal  rela- 
tionships and  of  the  impossibility  for  the  legislature  to  regulate  and 
anticipate  everything.  The  last  is  a  point  which  should  be  made  very 
clear  in  the  new  legal  education. 

'  In  the  following  discussion  we  shall  speak  only  of  the  method  of 
study  to  be  applied  in  the  principal  branches  of  law,  omitting  reference, 
therefore,  to  methodology  in  general  and  to  historical  criticism,  with 


§3]  STUDY  OF  LEGAL  HISTORY  437 

§  3.  The  Study  of  the  History  of  Law.  The  history 
of  institutions  has  long  been  neglected  because  the  object 
of  the  study  has  been  misunderstood  and  consequently 
its  method  too.  No  purpose,  either  scientific  or  practical, 
was  assigned  to  it;  the  past  offered  a  mere  object  of 
curiosity.  Legal  history  could  find  no  true  scientific 
purpose  when  it  was  believed  that  alone  the  philosophy 
of  law,  founded  upon  the  study  of  man's  nature,  was 
the  true  science  of  law,  and  so  should  be  the  source  of 
legislative  inspiration.  And  on  the  other  hand  it  could 
have  no  immediate  practical  end,  since  it  was  admitted 
that  the  institutions  created  by  the  legislator,  though 
they  had  a  history,  had  been  severed  from  their  past  by 
codification  and  been  given  an  independent  existence. 
The  study  of  th'e  history  of  institutions  thus  enjoyed 
secondary  importance.  It  followed  that  the  early 
legislation  of  a  country  was  studied  by  a  method  appro- 
priate to  this  role,  a  method  solely  descriptive,  detailing 
the  legislation  of  a  country  chronologically,  without 
any  critical  appreciation. 

The  introduction  of  the  inductive  method  in  the 
social  sciences  destroyed  the  philosophico-metaphysical 
conception  of  law.  Since,  then,  law  has  come  to  be 
regarded  as  a  resultant  of  social  facts,  a  product  of  the 
society  in  which  it  develops;  it  is  not  the  same  through 
time  or  in  different  countries;  it  is  in  a  constant 
state  of  flux.  It  is  now  agreed  that  we  must  search  in 
the  history  of  legal  institutions  for.  the  greater  part  of 
our  material  for  the  true  science  and  the  true  philosophy 
of  law. 

It  is  recognized,  too,  that  the  study  of  the  history 
of  legal  institutions  has  an  essentially  practical  side. 
If  we  are  to  understand  the  nature  of  existing  institutions 

which  students  should  already  be  acquainted  through  their  courses  in 
philosophy,  or  their  first  year  work  in  the  law  school  or  college. 


438      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

and  the  influence  which  social  phenomena  have  exercised 
upon  them,  we  must  know  their  past. 

1:  CONCEPTION  AND  METHOD  OF  FLACH.  The 
study  of  the  history  of  institutions  is  important,  then, 
from  both  a  scientific  and  practical  point  of  view.  We 
shall  refer  to  this  again;  for  the  moment,  let  us  con- 
sider what  method  of  study  will  enable  us  to  accomplish 
this  twofold  purpose. 

We  may  disregard  two  tendencies  that  have  here 
become  manifest:  the  sociological  tendency  and  the 
ethnologico- juridical  tendency,  the  latter  represented 
by  Morgan,  MacLennan,  Post,  and  Letourneau.  A 
distinguished  professor  of  the  College  de  France,  Flach, 
enjoys  the  distinction  of  being  the  first  to  demonstrate 
and  practise  the  proper  method  of  obtaining  these  ends. 
He  was  the  first  to  protest  against  the  double  error  of 
studying  the  history  of  institutions  merely  from  a 
national  and  descriptive  point  of  view.  He  pointed 
out  very  clearly  that  it  was  impossible  to  study  the 
history  of  any  one  nation  without  knowing,  at  least 
along  broad  lines,  the  general  history  of  civilization,  and 
that  it  was  equally  impossible  to  sturdy  the  history  of 
the  institutions  of  a  country  without  knowing,  at  least 
in  a  general  way,  the  history  of  institutions  in  all  other 
countries. 

The  history  of  law  is  consequently,  for  him,  synony- 
mous with  the  history  of  comparative  law.  "If  nations 
of  the  same  race,"  he  says,  "preserve  in  their  speech, 
traditions,  and  popular  literature,  a  common  residuum, 
after  years  of  profound  separation,  why  should  they 
not  retain  in  their  law  the  vestiges  of  a  distant  past? 
And  may  we  deny  that  neighboring  nations,  which  have 
met  in  war,  turn  by  turn  conquerors  and  conquered, 
which  have  later  been  united  by  the  close  bonds  which 
commerce,  art,  and  literature  create  amongst  men,  have 


§3]  STUDY  OF  LEGAL  HISTORY  439 

not  exercised  a  durable  influence  upon  each  other's 
laws?"  8 

Flach  would  also  have  us  understand  the  life  of  insti- 
tutions, that  is  to  say  their  origin,  their  development, 
the  influence  which  surrounding  facts  have  exercised 
upon  them,  and  the  way  in  which  this  influence  operated. 
Historical  investigation  consists,  he  says,  in  "resolutely 
undertaking  a  detailed  scrutiny,  methodical  and  critical, 
of  the  texts  of  laws,  country  by  country,  race  by  race, 
epoch  by  epoch,  in  classifying,  comparing,  and  verifying 
them,  so  that  they  mutually  illuminate  the  essential  and 
elementary  data  which  analysis  enables  us  to  uncover 
within  this  immense  mass  of  material,  and  so  in  construct- 
ing slowly  and  cautiously  a  scientific  synthesis."  9 

2:  THE  HISTORY  OF  INSTITUTIONS.  The  study  of 
the  history  of  institutions  should  be  complete ;  it  should 
follow  the  inductive  method  strictly.  Beginning  with 
the  legal  institutions  of  the  Romans,  it  should  continue 
by  a  general  course  upon  the  institutions  of  the  four 
groups  of  western  countries:  Latin,  Anglo-Saxon,  Ger- 
manic, and  Slavic. 

Such  a  study  of  the  whole  subject  must  be  made  only 
along  its  broad  lines,  so  that  it  presents  the  general 
features  of  the  institutions  of  all  the  countries  and  the 
influences  of  varying  intensity  which  social  phenomena 
have  exercised  upon  them.  It  should  be  divided  into 
longer  and  more  distinct  historical  periods  than  at 
present,  and  in  each  the  student  will  examine  the  effects 

*Flach,  "Les  Origines  de  1'ancienne  France"  (Paris,  1886),  Introduc- 
tion, no.  vi. 

9  "L'Enseignement  de  1'histoire  des  legislations  comparees  au  College  de 
France,"  in  "Revue  Internationale  de  1'Enseignement,"  vol.  xxxv  (1898), 
p.  310;  cf.  "Le  Levirat  et  les  origines  de  la  famille"  from  "Annales  des 
Sciences  Politiques"  (May,  1900),  pp.  3-7.  Flach  adopted  this  concep- 
tion of  the  history  of  institutions  and  of  the  historical  method  in  "Origines 
de  1'ancienne  France"  (supra)  and  in  his  course  on  comparative  law 
which  he  has  given  in  the  College  de  France  since  1879. 


440      ALVAREZ:   METHODS  FOR  CODES  [CH.XI 

of  such  universal  phenomena  as  Christianity,  the  canon 
law,  feudalism,  the  struggle  between  the  civil  and  reli- 
gious powers,  the  Reformation,  and  absolute  monarchy. 
In  this  way  it  is  possible  to  reach  an  exact  estimate  of 
the  significance  of  the  great  events  of  history.  Feudal- 
ism, especially,  can  be  understood  only  by  a  comparative 
study  of  the  institutions  of  different  countries.  It  will 
thus  be  clear  why  a  particular  phenomenon  was  felt  in 
one  country  rather  than  another;  why,  for  instance,  in 
France  and  England,  the  law  is  feudal,  while  in  Spain 
it  is  so  essentially  religious  that  certain  of  the  old  codes 
seem  almost  clerical. 

Afterwards  each  period  will  be  taken  up,  special 
emphasis  being  given  to  the  history  of  the  institutions 
of  that  group  to  which  the  student's  country  belongs. 
The  aim  will  be  to  explain  the  origin  and  transformation 
of  institutions  and  to  reveal  the  influences  of  social 
environment  attending  their  development.  The  student 
starts,  therefore,  by  examining  the  social  environment, 
the  phenomena  of  every  sort,  of  a  given  period ;  he  next 
determines  their  intensity  and  energy;  and  finally  he 
will  inquire  how,  under  their  influence,  the  different 
institutions  have  sprung  into  existence  and  developed. 
Parallel  with  this  the  different  methods  will  be  empha- 
sized which  have  been  employed  by  jurists  and  judges, 
under  the  guise  of  interpretation,  to  develop  the  law 
in  the  direction  of  a  more  or  less  exact  adjustment  to 
new  social  needs. 

In  a  last  course  of  studies  certain  of  the  principal 
legal  institutions  will  be  taken  up,  such  as  the  law  of  the 
family  and  of  property.  These  will  aim  to  describe, 
along  strictly  historical  lines  and  in  greater  detail  than 
in  the  general  course  already  referred  to,  the  origin  and 
evolution  of  those  institutions  already  examined  by 
periods  in  the  general  course,  as  well  as  other  institutions. 


§3]  STUDY  OF  LEGAL  HISTORY  441 

3:  SOCIAL  ENVIRONMENT.  The  study  of  social 
environment  and  its  influence  upon  institutions  is  un- 
doubtedly exceedingly  difficult.  Social  phenomena  are 
highly  complex  and  react  reciprocally  upon  each  other 
in  such  a  way  that  it  will  not  always  be  easy  to  deter- 
mine with  precision  the  strength  of  the  influence  exer- 
cised by  each  phenomenon.  Certain  influences,  too, 
may  be  very  remote  and  react  only  gradually  in  com- 
bination with  other  elements.  Yet  in  spite  of  these 
obstacles  the  study  should  be  undertaken,  for  it  is  in  no 
wise  impossible.  It  will  indeed  be  difficult  if  we  propose 
to  make  the  examination  exhaustive,  but  not  so  if  we 
rest  content,  as  is  best,  to  sketch  its  broad  lines  and 
general  characteristics.  It  would  in  fact  be  improper 
to  take  these  up  exhaustively  except .  in  so  far  as  there 
is  real  utility  in  doing  so. 

While  the  study  of  legal  institutions  by  the  method 
we  have  indicated  is  admittedly  difficult,  we  shall 
be  made  thereby  to  see  them  in  their  true  light.  It 
will  illustrate  their  greater  or  less  interdependence 
and  the  variability  of  their  essential  and  secondary 
elements,  the  former  over  long  periods,  the  latter 
more  rapid.  They  will  not  then  appear  as  abstrac- 
tions and  still  less  as  immutable;  rather  will  they  be 
seen  to  be  derived  from  the  general  conditions  of  each 
period. 

§  4.  The  Study  of  Positive  Law.  The  purpose  of  this 
study,  as  we  have  said,  should  be  to  present,  in  their 
entirety  and  along  broad  lines,  all  the  legal  relationships 
which  to-day  are  approached  separately  as  isolated 
branches.  Such  a  study  of  the  whole  is  indispensable 
to  gain  a  just  idea  of  the  true  nature  of  legal  relationships 
and  of  the  transformations  which  they  have  undergone 
or  are  undergoing,  and  to  secure  objective  rules  by  which 
to  solve  the  problems  of  the  future. 


442      ALVAREZ:   METHODS  FOR  CODES  [CH.XI 

First,  then,  it  is  important  to  reconstruct  legal  relation- 
ships in  their  present  forms,  just  as  changing  civilization 
has  left  them,  and  then  to  derive  an  objective  method 
of  interpretation. 

1 :  RECONSTRUCTION  OF  CIVIL  INSTITUTIONS.  Civil 
law,  interwoven,  as  we  have  shown  it  to  be,  with 
other  branches  of  positive  law,  is  constantly  being  trans- 
formed. Few,  indeed,  are  the  institutions  that  have 
remained  what  they  were  at  the  time  of  the  Code,  or  that 
have  disappeared  since  then.  Yet  almost  all  of  them, 
in  letter  or  spirit,  perpetuate  certain  traits  of  the  old 
law  along  with  others  that  are  new  and  irreconcilable. 
We  must  reconstruct  or  reassemble  these  institutions, 
as  altered,  so  as  to  show  them  in  their  true  aspects. 
Modifying  elements  should  be  separated  out  so  as  to 
emphasize  their  extraneous  character,  which  is  not 
apparent  to-day  because  of  the  present  defective  system 
of  teaching  the  Codes.  Institutions  so  reconstructed 
will  not  possess  the  clearness,  permanence,  and  precision 
that  they  enjoyed  under  the  Code.  Their  type  will 
appear  somewhat  hybrid.  But  this  obviously  will  be 
the  fault  neither  of  interpretation  nor  its  method,  but 
of  the  changes  that  legislation  has  undergone. 

This  first  principle  disposed  of  —  and  it  can  hardly 
be  disputed  by  anyone,  even  by  those  who  cling  most 
tenaciously  to  respect  for  the  letter  of  the  law  —  let  us 
examine  how  this  reconstruction  is  to  be  effected.  For, 
under  guise  of  reconstruction,  the  judge  or  teacher  must 
not  be  allowed  to  modify  at  will  the  character  of  legal 
institutions.  In  other  words,  we  must  search  for  objec- 
tive tests  and  principles  by  which  legal  interpretation 
may  successfully  accomplish  its  function. 

2:  METHOD  OF  RECONSTRUCTION.  To  make  such 
a  reconstruction,  we  should  begin  by  a  general  intro- 
duction setting  forth  the  principles  underlying  the 


§4]  RECONSTRUCTION  OF  LAW  443 

codification,  the  ideas  prompting  the  legislator,  and  the 
divisions  of  his  work.  We  should  then  study  the  prin- 
cipal institutions  governed  by  the  Code,  which,  by  their 
importance,  dominate  the  whole  body  of  the  civil  law: 
in  particular,  legal  personality,  capacity,  property,  and 
the  juridical  act. 

This  general  introduction  will  be  of  the  highest  impor- 
tance in  the  study  of  civil  law,10  whose  mechanism 
and  true  scope  will  be  made  comprehensible  thereby.11 
The  contents  of  the  Code  will  be  taken  up  in  their 
logical  relation  to  one  another,  rather  than  scattered 
as  we  now  find  them.  Such  an  arrangement,  quite 
different  from  that  of  the  Code,  will  have  the  advantage 
of  teaching  the  relation  between  certain  subjects  which 
are  not  usually  brought  together,  or  which  are  analyzed 
only  fragmentarily,  in  the  belief  that  each  phase  belongs 
to  a  different  and  special  branch  of  the  law. 

Thus  everything  relating  to  property  will  be  studied 
in  one  general  logical  synthesis.  Its  different  forms 
will  be  shown  and  the  branch  of  the  law  to  which  each 
belongs.  The  distinguishing  elements  of  each  particular 
branch  of  property  (industrial,  commercial,  literary, 
artistic,  etc.)  will  be  considered  at  more  or  less  length, 
and  finally  property  in  its  ordinary  sense  —  movables 
and  immovables  —  will  be  taken  up.  In  the  same  way 
all  the  civil12  institutions  constituting  rights  in  the 

10  German  jurists  have  never  lost  interest  in  this  introductory  study, 
even  since  the  new  Civil  Code,  and  numerous  works  are  devoted  to  it. 
There  is  in  France  up  to  the  present  time  but  one  work  upon  the  subject, 
Capitanl,  "Introduction  a  1'etude  du  droit  civil"  (Paris,  2d  ed.,  1904). 

11  The  problem  of  the  best  manner  of  dividing  the  curriculum  among 
the  three  years  of  the  bachelor's  degree  would  thus  be  answered.     The 
difficulty  arises  from  the  impossibility  of  studying  certain  institutions 
without  having  first  had  a  general  view  of  all  others.     At  the  present 
time    there  is  under    consideration,  in  the    law  schools  of  the  French 
universities,  a  reform  proposed  by  Gasson  and  Villey  to  the  "Superior 
Council  of  Public  Instruction." 

1J  [Civil  as  opposed  to  commercial.  — -  TRANSL.] 


444       ALVAREZ:    METHODS  FOR  CODES  [Cn.XI 

property  of  others,  to-day  taken  up  one  by  one  in  disre- 
gard of  the  relations  naturally  uniting  them,  will  be 
studied  together. 

The  study  of  each  institution  will  be  introduced  by  a 
glance  at  its  different  historical  phases;  but  to  the  his- 
tory of  law  will  be  left  the  task  of  uncovering  its  evolu- 
tion, because  the  purpose  of  such  a  review  would  be 
merely  to  make  clear  the  past  importance  of  the  institu- 
tion. The  next  step  would  be  to  deduce  the  juridical 
synthesis  of  the  institution,  as  it  has  evolved  from 
the  legislature  and  the  courts.  Its  precise  boundaries 
would  be  marked  off,  without  proposing  by  such  a  syn- 
thesis to  anticipate  all  possible  difficulties,  as  has  been 
the  mistaken  effort  of  all  authors  who  have  adopted 
this  method. 

A  synthesis  thus  reached  without  preconceived  pur- 
pose or  idea  does  not  admit  of  the  criticism  by  Geny, 
who  declared  that  in  every  logical  synthesis  there  is  an 
implied  postulate  that  all  positive  law  is  written  law.13 
The  method  just  explained  is,  in  reality,  nothing  more 
than  the  application  of  scientific  unity  to  law,  and  it 
alone  permits  of  an  exact  conception  of  institutions, 
their  purposes,  scope,  and  relation  one  to  another. 

3:  OLD  AND  NEW  METHODS  CONTRASTED.  The 
system,  as  we  have  so  far  sketched  it,  is  not  new. 
Adopted  by  Zachariae,  it  was  further  developed  by 
Aubry  and  Rau,  and  perfected  by  Bufnoir.14 

But  these  authors  erred  in  stopping  short  at  the 
juridical  synthesis.  They  regarded  institutions  as  fixed, 

"Geny,  "Methode  d'interpretation  et  sources  en  droit  prive  positif," 
no.  25  [translated  ante  in  this  volume]. 

14  The  system  of  Aubry  and  Rau  is  subject  to  criticism  in  that  its 
introductory  part  is  not  sufficiently  elaborated.  We  submitted  a 
program  of  study  of  civil  law  as  indicated  in  the  text  to  the  Law  School 
of  the  University  of  Chile,  which  adopted  it;  inserted  in  the  author's 
"La  Reforme  des  etudes  juridiques  et  politiques"  (Spanish,  Santiago, 
Chile,  1901),  pp.  46-83. 


§4]  RECONSTRUCTION  OF  LAW  445 

and  devoted  no  time  to  observing  the  continuous  modi- 
fications which  they  have  undergone  and  are  under- 
going and  which  constitute  their  very  life.  Just  there 
lies  the  new  element  which  we  would  introduce  into 
the  study  of  law.  It  must  be  freed  from  the  doctrinal 
discussion  of  scholastic  questions,  such  as  to-day  fill 
precious  hours  of  the  general  courses.  Such  details 
will  be  material  for  the  special  optional  courses  offered 
to  those  who  are  interested  in  that  sort  of  study.  The 
juridical  synthesis  once  concluded,  attention  must  be 
turned  to  the  modifications  which  social  phenomena 
have  effected  directly  or  indirectly,  and  to  the  search 
for  the  points  of  approach  or  divergence  of  the  various 
branches  of  the  law  relating  to  a  given  institution.  In 
this  way  each  institution  will  be  seen  under  its  true 
physiognomy. 

This  kind  of  reconstruction,  when  it  is  the  fruit  of 
observation,  based  upon  the  social  sciences  so  as  to 
retain  a  truly  scientific  character,  cannot  be  accused 
of  being  arbitrary  or  of  necessarily  flowing  from  the 
purely  subjective  mind  of  the  person  who  constructs  it. 
No  doubt  it  does  possess  a  personal  element.  But  is 
not  the  interpretation  of  the  most  categorical  rule  of 
law  subject  to  the  personal  equation?  Such  reconstruc- 
tions lose  nothing  of  their  value  thereby,  since  their 
basis,  that  is  to  say  the  social  facts  shaping  them,  are 
in  a  real  sense  objective.  To  refuse  to  adopt  this 
method  in  the  study  of  institutions,  on  the  ground  that 
it  creates  confusion  and  mingles  different  branches 
of  the  law,  is  to  garble  these  institutions  and  to 
present  them  in  a  form  that  they  do  not  possess  in 
reality.  It  need  hardly  be  added  that,  as  society- 
is  constantly  changing,  these  synthetic  studies  must 
be  constantly  retouched  so  that  they  may  be  kept  up- 
to-date. 


446      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

These  reconstructions  of  the  law  will  be  valuable 
references  for  the  courts;  and  jurists  will  be  filling  their 
proper  mission  by  enlightening  the  court  rather  than 
by  engaging  in  postmortem  disputation. 

4:  RESULTS.  Our  purpose  is  to  disengage  the  study 
of  law  from  the  details,  controversies,  and  syllogisms 
encumbering  it,  and  to  restore  its  true  character  as  a 
social  science  by  examining  legal  institutions,  not  at  any 
given  moment,  as,  for  instance,  when  they  become  the 
subject  of  legislation,  but  throughout  the  whole  course 
of  their  evolution  up  to  their  present  state.  It  will  be 
more  evident  then  that  this  very  evolution  is  imposed 
by  the  development  of  civilization  and  that  legislation 
cannot  anticipate  all  the  problems  which  each  fresh 
day  of  social  existence  gives  rise  to.  The  codes  will 
not  be  considered  as  complete  and  final  regulations  of 
every  subject,  but  simply  as  reflecting  them  at  a  given 
period.  They  will  be  merely  a  point  of  departure  from 
which  institutions  will  be  observed  t*b  continue  devel- 
oping. 

Now  these  reconstructions  should  be  completed  by 
brief  references  to  comparative  legislation,  which  will 
bring  together  the  more  general  traits  of  the  same 
institutions  in  the  four  groups  of  countries  into  which 
they  are  naturally  classified.  This  comparison,  as  part 
of  the  general  course,  will  aim  merely  at  emphasizing 
the  relativity  of  institutions  (which,  indeed,  are  never 
identical  at  different  times  or  in  different  countries), 
and  at  providing  a  legislative  guide  by  reference  to 
foreign  legislation. 

Lastly,  institutions  must  be  studied  by  the  critical 
method,  making  use  of  the  political,  economic,  and  social 
sciences,  especially  statistics,  and  even  the  data  furnished 
by  medical  jurisprudence.15  So  too,  in  certain  matters 

16  On  marriage,  ci.Brouardel,  "Le  Mariage"  (Paris,  1899). 


§4]  RECONSTRUCTION  OF  LAW  447 

the  needs  and  aims  of  determinate  groups  should  be 
explained.  Especially  is  this  true  of  the  socialist  group, 
because  their  ambitions  are  not  ephemeral  but 
permanent;  each  day  they  strengthen  rather  than 
decline.16 

§  5.  Interpretation  of  Private  Law.  Judges  and 
jurists  have  believed  that,  after  codification,  they  did 
not  possess  the  same  powers  of  interpretation  as  before, 
under  early  French  law  or  under  Roman  law.  They 
believed  that  their  only  function  was  to  apply  the  strict 
letter  of  the  law,  and  to  search  for  the  intent  of  the 
legislator,  in  cases  presenting  novel  problems,  without 
a  thought  whether  these  new  situations  were  susceptible 
of  the  same  sort  of  regulation  as  that  already  provided 
by  legislation.  But  we  have  also  seen  how,  in  the  course 
of  the  1800s,  in  spite  of  a  superstitious  regard  for  the 
letter  of  the  law,  they  yet  tried  (timidly,  it  is  true,  under 
the  guise  of  interpretation)  to  adjust  codified  law  to 
the  new  exigencies  of  practice  by  rendering  it  more 
flexible,  by  expanding  it  or  even  by  creating  new  rules. 
And  lastly  we  saw  how  a  few  modern  jurists  hoped  to 
realize  a  complete  agreement  between  the  codified  law 
and  the  new  social  needs.  They  have  created  and 
boldly  put  forward  a  new  conception  of  legal  interpre- 
tation, by  wThich  jurists  and  judges  may  openly  and 
frankly  do  what  they  accomplish  to-day  timidly  and 
reluctantly. 

Of  all  these  authors  Saleilles  has  made  the  most  exhaus- 
tive and  original  examination  of  this  conception,  endeav- 
oring to  discover  the  objective  elements  of  this  new 
method  of  interpretation.  In  one  of  his  essays 17  he  showed 
that  in  the  interpretation  of  the  law  two  considerations 

16  Important  from  this  point  of  view,  Menger,  "Etat  socialiste" 
(French  trans,  by  Milhaud,  Paris,  1904). 

"Saleilles,  "La  Reforme  de  la  license  en  droit,"  in  "Revue  Inter- 
nationale de  1'Enseignement"  (Apr.  15,  1904),  pp.  320-322. 


448      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

must  be  kept  distinct :  (a)  the  ripeness  of  conditions  for 
transposition  into  a  rule  of  law;  (b)  the  method  to  be 
followed  to  effect  the  transposition.  He  takes  the 
Roman  law  as  the  best  model  in  these  two  regards,  not 
only  in  the  past  but  even  at  the  present  time. 

1:  FUTURE  FUNCTION  OF  INTERPRETATION.  In  our 
opinion,  the  problem  of  the,adjustment  of  law  to  practical 
needs  is  not  solved  merely  by  a  new  method  of  interpre- 
tation. Legal  institutions  change  in  spite  of  codification. 
These  modifications,  therefore,  must  be  studied  in  order 
to  represent  legal  relationships  in  their  veritable  colors. 
After  having  studied  these  modifications,  and  the  mode 
and  the  direction  of  their  evolution,  we  may  then  prop- 
erly derive  a  new  conception,  first,  of  the  aim  of  inter- 
pretation, and  second,  of  the  ways  by  which  that  aim  may 
be  obtained,  without  being  taxed  with  subjectivism. 

The  first  of  these  considerations  we  have  already 
discussed.  The  second  consideration  must  now  be 
approached.  It  naturally  falls  into  two  queries:  What 
in  the  future  is  to  be  our  conception  of  the  function  of 
interpretation?  What  shall  be  its  methods? 

As  to  the  function  of  interpretation,  it  is  impossible 
to  follow  the  role  of  the  Roman  jurisconsult,  as  Saleilles 
proposes  even  to-day,  because  political  and  social  con- 
ditions are  wholly  different  from  those  of  the  Roman 
period.  During  the  period  of  the  Roman  law,  as  also 
during  the  period  prior  to  the  French  Code,  the  nature 
of  legal  relationships  altered  slowly  and  their  transforma- 
tion was  uniform,  so  that  the  interpretation  of  that  period 
could  have  but  the  one  function,  that  of  developing  or 
rendering  the  rules  of  law  more  flexible.  Consequently, 
logic  was  the  only  tool ;  with  it  were  produced  subtleties 
which  masked  the  slow  evolution  going  on  beneath. 

This  method  cannot  serve  to-day.  Legal  relationships 
are  almost  all  changing  with  increasing  rapidity.  They 


§5]  INTERPRETATION  449 

are  different  from  the  relationships  of  the  early  law. 
This  is  an  era  of  transition,  beset  with  difficulties  and 
doubts.  The  functions  of  interpretation,  therefore, 
cannot  be  to  subsume  under  existing  legislative  rules 
situations  which  are  very  different  from  those  faced  by 
the  early  law,  situations  such  as  the  legislator  would 
have  regulated  quite  differently  had  he  been  obliged 
to  meet  them  then.  To-day  its  functions  frankly  must  be 
to  aid  the  evolution  of  institutions  in  the  direction  in  which 
social  phenomena  are  impelling  them,  solving  the  new  cases 
that  arise  in  harmony  with  that  evolution. 

This  new  conception  of  interpretation  is  not,  therefore, 
arbitrary.  It  results  rather  from  the  study  of  social  facts 
and  their  influence  upon  legal  relationships ;  it  is  derived 
from  social  life  itself,  and  to  disregard  it  is  to  ignore 
society  as  a  living  organism. 

2:  FUTURE  METHOD  OF  INTERPRETATION.  What 
shall  be  the  method  of  interpretation  under  the  new 
conception?  Its  function  being  such  as  we  have  just 
described,  the  problem  can  no  longer  be  to  circumscribe 
it  by  rules  more  or  less  exact,  but  solely  to  enable  it  to 
discover  the  direction  in  which  the  particular  institution 
is  developing.  This  may  be  done  by  undertaking  the 
reconstruction  of  each  institution  in  the  way  that  we 
have  already  sketched. 

All  institutions  are  not  passing  through  the  same 
evolution.  We  must  first  realize  that,  contrary  to  the 
present  rule  and  to  common  belief,  no  uniform  method 
of  interpretation  can  exist,  and  that  we  must  have 
recourse  to  different  rules  corresponding  to  the  different 
stages  in  the  evolution  of  legal  relationships.  Thus, 
in  the  general  study  of  the  evolution  of  institutions, 
we  have  to  consider  those  rare  cases  which,  during  the 
1800s,  did  not  change  or  changed  very  little;  those 
that  have  been  partially  but  not  wholly  modified,  which 


450       ALVAREZ:    METHODS  FOR  CODES  [Cn.XI 

form  the  great  majority;  those  that  have  been  com- 
pletely transformed ;  and  finally  those  that  have  sprung 
into  existence  since  the  Code  and  possess  a  different 
character  from  the  institutions  which  it  established. 

The  line  of  demarcation  between  these  four  classes 
of  institutions  is  not  easy  to  trace.  But  that  is  of  minor 
importance.  What  we  must  know  above  all  is  the  direc- 
tion of  their  evolution,  so  that  we  may  bring  the  inter- 
pretation of  law  into  line. 

In  the  first  class,  rules  of  law  should  be  applied  just 
as  the  legislator  pronounced  them.  The  traditional 
method  of  interpretation  should  be  followed,  because 
the  fact  that  the  institution  has  undergone  no  change 
shows  clearly  enough  that  its  regulation  needs  no  modi- 
fication and  that  that  provided  by  the  legislator  suffices. 
But,  even  in  this  case,  what  we  must  not  lose  sight  of 
is  that  the  aim  of  interpretation  must  never  be,  as  has 
been  the  mistaken  belief,  to  arrive  at  the  intention  of 
the  legislature  years  ago,  but,  with  due  respect  for  the 
literal  text  of  the  law,  to  give  it  the  meaning  most  in 
conformity  with  the  present  social  needs. 

In  the  second  class,  the  law  should  no  longer  be  inter- 
preted according  to  the  old-time  rules  or  the  general 
spirit  of  the  early  legislation,  but  according  to  the  new 
tendencies  apparent  in  the  evolution  of  the  institutions. 
These  tendencies  are  not  difficult  to  discover,  for  they 
are  well  revealed  by  the  facts  which  effect  the  modifica- 
tion. Thus,  for  instance,  questions  relating  to  paternal 
or  marital  control  should  to-day  be  solved  in  the  sense 
most  favorable  to  liberty  and  the  legal  and  economic 
independence  of  the  wife  or  minor  son,  because  this  is 
the  direction  of  the  evolution  of  modern  society.  In 
order  to  see  clearly  the  trend  of  an  institution  we  must 
turn  to  the  general  characteristics  which  we  have  recog- 
nized in  modern  laws,  because  they  portray  the  general 


§5]  INTERPRETATION  451 

direction  in  which  institutions  are  progressing.  The 
results  of  the  study  of  comparative  legislation  in 
the  particular  subject  must  be  consulted,  because  all 
countries  are  to-day  witnessing  the  same  phenomena 
and  the  tendency  everywhere  is  to  meet  them  in  the 
same  way. 

The  contract  of  hire  of  services  is  the  most  typical 
example  of  the  third  class,  and  also  of  the  last  class. 
Here  legal  relationships  should  be  interpreted  in  the  light 
of  their  new  character  and  purpose,  and  not  of  the  general 
principles  of  civil  law,  as  has  unfortunately  been  the 
rule  so  far.18 

3:  THE  METHOD  is  OBJECTIVE.  The  method  of 
interpretation,  just  described,  is  not  so  fixed  or  precise 
as  the  traditional  rules.  But  it  is  a  method  with  which 
we  may  well  be  content ;  for  such  stability  and  precision 
can  be  obtained  only  at  the  expense  of  the  harmony 
which  should  always  exist  between  a  rule  of  law  and  the 
social  need  which  it  proposes  to  fill.  It  is  less  clear  and 
precise  than  the  traditional  method,  but  it  has,  on  the 
other  hand,  the  necessary  objective  quality.  While 
preventing  the  abuse  of  interpretation,  it  is  yet  elastic 
enough  to  permit  of  the  imperceptible  modification  of 
the  law,  by  constantly  adjusting  it  to  the  normal  develop- 
ment of  institutions. 

18  A  very  typical  example,  illustrating  the  inconveniences  which 
may  result  from  the  adoption  of  any  other  system  than  the  one  we 
propose,  is  furnished  by  the  judicial  interpretation,  notably  of  the  Court 
of  Cassation,  given  to  the  Act  of  December  27,  1890,  supplementing 
article  1780  of  the  Civil  Code.  The  purpose  of  this  Act  was  to  prevent 
the  peremptory  discharge  of  an  employee  by  his  master.  Instead  of 
being  influenced  by  this  purpose  the  Court  of  Cassation  has  for  a  long 
while  admitted,  in  accordance  with  the  general  rules  of  civil  law, 
that  the  master  can,  as  a  measure  of  regulation  of  his  shop,  derogate 
from  the  rule  of  the  Act  and  deprive  the  employee  of  his  right  of  com- 
pensation if  dismissed  without  notice,  because,  having  entered  the  shop, 
he  is  held  to  have  accepted  these  conditions.  The  court  thus  applied 
to  a  new  principle,  the  purpose  of  which  was  to  limit  liberty  of  contract, 
the  old  general  rules  of  contract  law. 


452      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

It  cannot  be  objected  that  the  proposed  method  is 
not  solidly  anchored  in  the  law,  and  that  its  only  object 
is  to  substitute  the  dictates  of  equity  and  good  con- 
science, as  understood  by  the  individual,  for  the  rules  of 
the  Code.  On  the  contrary,  the  reason  of  the  rule,  as 
we  have  already  shown,  lies  in  the  transformations  of 
the  law  as  a  living  structure,  and  its  one  aim  is  to  follow 
these  transformations.  Its  foundations  are,  therefore, 
objective,  and  in  a  true  sense  tend  to  realize  social  justice 
without  in  the  least  disturbing  or  upsetting  legal  rela- 
tionships. 

§  6.  The  Study  of  Comparative  Law.  The  study 
of  foreign  institutions  goes  back  to  an  early  period. 
The  philosophers  of  the  1700s  devoted  themselves  to  it, 
and  Montesquieu  gave  it  an  important  place  in  his  work. 
Consequently  public  law,  which  arose  out  of  the  Revo- 
lution, felt  its  influence. 

This  branch  of  investigation  was  pursued  during  the 
1800s;  but  the  history  of  law  attracted  the  greatest 
interest  and  comparative  study  was  limited  to  Oriental 
civilizations.  Maine  in  England,  Laboulaye,  Dareste, 
and  Gide  in  France,  Kohler,  Jhering,  and  Savigny  in 
Germany,  to  mention  only  the  best-known,  have  revealed 
new  phases  of  the  life  of  the  law,  and  therefore  of  the 
society  of  civilizations,  far  removed  from  us  in  time  and 
space.  During  the  last  twenty-five  years  this  branch 
of  investigation  broadened  its  field  to  include  the  present 
law  of  Western  countries.  To  the  study  of  the  history 
of  early  institutions  or  of  institutions  of  peoples  of 
different  civilization,  has  been  added  that  of  comparative 
legal  ideas,  which  is  to-day  gaining  momentum  in  almost 
every  country.19 

w  An  example  of  the  earliest  work  upon  general  comparative  law  is 
C.-F.  Gabba,  "Introduction  aux  etudes  de  legislation  comparee"  (Milan, 
1862);  Gumercindo  de  Azcdrate,  "Essai  d'une  introduction  a  1'etude  de 
la  legislation  comparee"  (Madrid,  1874);  De  Filippis,  "Cours  complet 


§6]  COMPARATIVE  LAW  453 

1:  VARIOUS  OPINIONS  OF  THE  OBJECT  OF  COM- 
PARATIVE LAW.  Everyone  is  not  yet  agreed  upon  the 
aim  of  comparative  legal  science,  and  it  will  be  proper 
here  to  examine  in  turn  the  various  diverging  views.20 

These  diverging  opinions  fall  into  two  classes:  those 
that  regard  comparative  law  as  an  art,  and  those  that 
regard  it  as  a  science. 

(1)  Comparative  law  as  an  art.  Among  the  former 
we  count  four  shades  of  thought.  For  some  the  object 
of  this  study  is  merely  to  serve  for  initiation  into  an 
acquaintance  with  foreign  law.  Its  value,  therefore,  is 
scientific  and  in  practice  it  will  tend  to  facilitate  inter- 
pretation in  cases  of  private  international  law. 

Others  believe  that  comparative  law  serves  merely 
to  animate  and  modernize  the  study  of  the  private  law 
of  a  country.  This  view  prevailed  in  France,  when 
advanced  elective  courses  in  comparative  civil  law  were 
introduced. 

Yet  others  believe  the  study  is  indispensable  in  the 
preparation  of  internal  legislation,  since  it  indicates  the 
way  in  which  the  legislature  may  carry  out  future  reforms. 

A  fourth  theory,  to  which  we  have  already  referred,21 
was  proposed  by  Lambert.22  According  to  him,  the  study 
of  comparative  law  is  of  very  special  importance.  It 
serves  to  separate  from  the  different  legal  systems 
studied  a  comparative  common  law,  or  law  common  to  all 

de  droit  civil  compare"  (Naples,  1881,  10  vols.).  The  work  in  French 
by  Saint-Joseph,  "Concordance  entre  les  Codes  civils  etrangers  et  le  Code 
Napoleon  (2d  ed.  4  vols.,  1856),  is  not  worthy  of  being  classed  among 
works  upon  comparative  law. 

*°  The  Congress  of  Comparative  Legislation,  which  met  in  Paris 
in  1900,  strove  to  reach  an  agreement  upon  this  question  in  the  different 
branches  of  law.  The  contributions  upon  comparative  civil  law  evi- 
dence the  very  great  diversity  of  opinion  upon  this  important  subject. 

21  [Alvarez,  "Une  nouvelle  conception  des  etudes  juridiques  et  de  la 
legislation    comparee,"    pp.    97-99. — TRANSL.] 

22  Lambert,  "La  Fonction  du  droit  civil  compare"  (Paris,  1903),  vol.  i 
[translated  in  part,  ante  in  the  present  volume]. 


454      ALVAREZ:   METHODS  FOR  CODES   [Cn.XI 

nations.  This  would  have  a  twofold  purpose:  first, 
such  a  common  law  would  constantly  react  upon  the 
different  legal  systems  from  which  it  was  derived  and 
serve  as  a  guide  to  interpretation  by  enlightening  the 
courts  and  inspiring  legislative  reforms;  second,  and 
more  important,  it  would  tend  to  unify  the  private  law 
of  all  countries,  or  at  least  to  lessen  more  and  more  the 
accidental  differences  in  law. 

(2)  Comparative  law  as  a  science.  Three  names  are 
to  be  considered  in  support  of  the  various  opinions  of 
the  second  category. 

Roguin  believes  that  comparative  law  is  a  science 
which  aims  to  study  and  collate  the  law  of  different 
countries  in  a  systematic  order,  with  the  object  of  placing 
stress  upon  the  resemblances  and  differences  in  the 
rules  adopted  by  various  countries,  to  solve  the  many 
problems  arising  out  of  organized  society.23 

Tarde,  on  the  other  hand,  does  not  look  upon  this 
science  from  the  point  of  view  of  the  practical  ends 
which  it  may  serve.  For  him  its  object  is  scientific: 
to  arrive  at  a  genuine  classification  of  the  various  types 
of  given  juridical  institutions.  This  classification  would 
be  such  that  all  legal  systems  would  find  a  place  there, 
and  the  evolution  of  each  type  of  institution  could  be 
followed.  He  would  create  a  classification  of  different 
types  of  systems  similar  to  the  classifications  in  other 
branches  of  human  knowledge:  botany,  zoology,  miner- 
alogy, anthropology,  linguistics,  religion,  etc.  This 
study  would  be  an  aid  to  sociology.24 

Saleilles  regards  comparative  law  as  both  a  fundamen- 
tal and  an  auxiliary  science.  As  a  fundamental  science 
it  aims,  first,  to  study  different  legal  systems  from  the 

23  Roguin,  "Traite  de  droit  civil  compare";  "Le  mariage"  (Paris,  1904), 
Preface. 

M  Tarde,  "Le  Droit  compare  et  la  sociologie"  in  "Bulletin  dela  Societe 
de  Legislation  Comparee"  (1900),  pp.  529-537. 


§6]  COMPARATIVE  LAW  455 

social  point  of  view,  that  is,  to  observe  them  in  actual 
practice  and  to  compare  the  results  obtained ;  it  should 
then  compare,  on  the  basis  of  their  fundamental  points 
of  likeness,  the  general  principles  of  law  and  usage 
resulting  from  the  study  of  distant  legal  systems.  Finally, 
as  its  conclusion,  it  should  formulate  the  type  or  types 
of  legal  systems  met  with ;  and  this  comparative  critique 
would  serve  as  a  goal  toward  which  the  legal  systems 
of  different  countries  might  gradually  strive,  subject, 
of  course,  to  the  retention  of  traditional  forms  and  the 
historical  variances  distinguishing  them.  In  this  way 
comparative  law  furnishes  an  ideal  of  each  institution 
studied,  while  remaining  indifferent  to  its  introduction 
in  any  one  country.  The  latter  problem,  indeed,  con- 
stitutes what  is  called  legislative  policy.  As  an  auxiliary 
science,  comparative  law  should  aid  in  the  progressive 
development  of  national  law  by  setting  a  positive  goal 
(alike  for  legislative  evolution,  the  theories  of  writers, 
and  for  judicial  interpretation),  which  would  enable 
these  to  approach  as  near  as  possible  to  the  ideal  type 
and  so  make  them  in  the  end  the  material  for  a  common 
law  of  civilized  humanity.25 

2:  WHEREIN  THESE  CONCEPTIONS  FAIL.  To 
indicate  the  aim  which,  in  our  opinion,  the  study  of 
comparative  law  should  set  itself,  it  suffices  to  criticize 
the  various  conceptions  which  have  made  of  it  a  science. 

As  to  the  shortcomings  of  the  first  three  opinions 
which  hold  it  to  be  an  art,  we  merely  refer  to  the 
excellent  critique  by  Lambert,  whose  very  considerable 
work  has  already  been  cited.26 

"  Saleilles,  "Conception  et  objet  de  la  science  du  droit  compare," 
contributed  to  the  International  Congress  of  Comparative  Law  of  1900, 
published  in  "Bulletin  de  la  Societe  de  Legislation  Comparee"  (1900), 
pp. 383-405. 

26  Lambert,  "Etudes  de  droit  commun  legislatif  ou  de  droit  civil  com- 
pare, Introduction:  La  Fonction  du  droit  civil  compare"  (Paris,  1903), 
vol.  i,  pp.  8-107. 


456       ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

But  Lambert's  system  itself  seems  as  narrow  as  those 
just  mentioned,  which  he  refutes.  He  opens  with  a 
high  conception  of  comparative  law,  calling  it  a  science27; 
he  ends  by  reducing  its  function  to  an  art,28  namely, 
of  deriving  from  the  different  systems  of  law  studied  a 
comparative  common  law  or  law  common  to  all.  Such 
a  conception  is  not  novel.  It  was  recommended  by 
Saleilles,  who,  it  is  true,  did  not  consider  it  the  sole 
object  of  comparative  legislation  but  simply  a  secondary 
aim.  And  in  this  respect  Saleilles'  theory  is  not  sus- 
ceptible of  objection.29  That  of  Lambert,  however,  is 
inadmissible,  as  it  narrows  the  aim  of  the  science. 

Furthermore,  we  must  realize  that  the  uniformity  of  law 
will  not  be  attained,  as  Lambert  claims,  from  the  compara- 
tive study  of  law,  but  from  other  and  deeper  causes.30 

"  Ibid.  p.  7. 

s«  Ibid.  pp.  916-918,  922-924. 

M  Saleilles,  ibid.  p.  397. 

3<>  Will  unification  one  day  be  complete  and  absolute?  It  is  generally 
agreed  that  it  will  not,  and  most  writers  believe  it  neither  possible  nor 
desirable,  because,  they  say,  it  would  threaten  the  originality  of  the 
institutions  of  each  country.  Others,  especially  Lambert,  who  assign 
so  great  an  importance  to  the  study  of  comparative  legislation  as  a  means 
towards  uniformity,  believe,  on  the  contrary,  that  while  absolute  uni- 
formity of  legislation  is  desirable,  it  is  not,  however,  possible  (Lambert, 
ibid.  pp.  907-908).  Others  still,  among  whom  may  be  counted  Hue 
("Le  Code  civil  italien  et  le  Code  Napoleon:  etudes  de  legislation  com- 
paree,"  2d  ed.,  Paris,  1898;  vol.  i,  preface),  maintain  that  uniformity 
of  legislation  is  possible  and  desirable.  Hue  regards  the  Napoleonic 
Code  as  a  great  step  in  this  direction,  and  thinks  that  unity  will  be 
realized  the  day  when  other  nations  will  have  imitated  the  Napoleonic 
Code,  and  when  international  agreements  will  have  been  concluded  in 
large  enough  numbers. 

I  believe  that  we  must  here  draw  a  distinction.  Unity  of  law  among 
nations  of  the  same  race,  especially  among  the  Latin  countries,  is  almost 
an  accomplished  fact,  since  all  have  followed  the  Napoleonic  Code  very 
closely.  The  fundamental  differences  separating  them  in  the  past,  in 
matters  of  civil  marriage  and  divorce,  tend  more  and  more  to  disappear. 
At  present  they  differ  only  in  detail,  nowhere  in  essentials. 

Unity  among  different  groups  of  nations  will  be  far  more  difficult  to 
realize,  because  between  them  there  are  great  differences  founded  on 
history  and  national  character.  Yet  it  would  be  going  too  far  to  say 
that  uniformity  will  never  be  possible.  The  characteristic  trait  of  the 
evolution  of  modern  societies  is  the  very  fact  that  they  separate  away  from 


§6]  COMPARATIVE  LAW  45? 

The  second  purpose  which  Lambert  assigns  to  a  com- 
parative common  law,  namely  to  aid  in  the  interpreta- 
tion of  legislation  in  all  countries,  is  a  proper  one,  but 
we  have  already  pointed  out  that,  while  it  is  one  of  the 
most  emportant  elements  to  consider,  it  is  not  the  only  one. 

3:  TRUE  AIM  AND  METHOD.  What,  then,  is  the 
real  aim  of  comparative  law?  What  is  its  true  method? 

Its  object  is  to  present,  with  the  history  of  law  to 
which  it  is  intimately  bound,  and  with  the  results 
obtained  from  the  study  of  the  various  phenomena  as 
a  whole,  to  which  we  have  referred,  the  true  philosophy 
of  institutions,  or,  better,  to  create  a  true  jurisprudence. 

their  past  and  their  individuality.  All  countries  are  subjected  to-day 
to  the  influence  of  new.  phenomena  of  a  universal  character,  which  pro- 
duce the  same  effects  and  for  which  we  endeavor  everywhere  to  apply 
the  same  solutions,  although  the  political,  social,  and  religious  institu- 
tions of  these  nations  vary  widely.  Above  all  is  this  true  of  commercial 
laws.  In  this  field  Turkey  and  Japan  have  borrowed  their  law  from  the 
Western  nations.  It  is  this  very  phenomenon  that  explains  the  great 
impetus  given  to  the  study  of  comparative  law.  Again,  nations  are 
coming  into  closer  union.  Legal  relationships  in  this  way  tend  to  have, 
as  we  have  already  noted,  an  international  character,  and  to  be  regu- 
lated conformably.  Civil  law  tends,  at  least  along  broad  lines,  to  become 
one  with  private  international  law,  or  rather,  the  latter  will  come  to  be' 
merely  a  new  phase  of  civil  law,  because  in  the  future  it  must  undertake 
to  provide  a  single  set  of  rules  for  legal  relationships  of  an  international 
character.  In  this  way  it  will  become  the  most  powerful  practical  agent 
working  for  legal  uniformity.  These  two  circumstances  tend  to  efface 
the  individuality  of  national  law  and  to  destroy  all  the  distinguishing 
features  of  the  four  groups  of  legal  systems.  It  is  not  too  rash,  there- 
fore, to  say  that  just  as  isolation,  which  was  characteristic  of  the  past 
history  of  nations,  imparted  to  their  legislation  its  particular  and  his- 
torical character,  so  their  drawing  together  and  the  uniformity  of  the 
phenomena  to  which  they  are  at  present  subjected  tend  in  a  more  or  less 
distant  future  to  produce  uniformity  of  law. 

But  it  will  not  be  equally  realized  in  all  domains  of  the  law.  It  has 
already  begun  to  be  evident,  and  it  will  soon  be  realized,  in  those  branches 
in  which  social  phenomena  exercise  a  preponderant  influence,  and  where 
the  "rapprochement"  between  States  has  gone  farthest, — notably  in 
commercial  law,  and,  on  the  civil  side,  in  the  law  of  property,  obligations, 
and  things.  The  same  is  not  true  of  the  law  of  the  family,  though  even 
here,  in  certain  matters,  a  tendency  towards  unity  is  discoverable,  especi- 
ally in  civil  marriage,  divorce,  etc. 

[This  subject  is  dealt  with  in  part  iii  ("The  Movement  for  Interna- 
tional Assimilation  of  Law")  of  the  volume  above  cited  in  note  2,  "Pro- 
gress of  Continental  Law  in  the  Nineteenth  Century."  —  TRANSL  ] 


458      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

This  science  will  perform  the  same  purpose  and  function 
that  natural  law  or  the  philosophy  of  law  in  its  metaphys- 
ical aspect  did  in  the  past  and  still  does  to-day.31 

Jurists  unanimously  agree  that  comparative  law  should 
be  studied  by  the  method  of  observation.  Butagreement 
ceases  when  it  comes  to  determine  how  to  observe.  The 
tendency  which  has  unfortunately  dominated  so  far  is  to 
turn  to  the  same  dogmatism  that  was  practised  in  the 
study  of  the  Civil  Code.  This  method  cannot  secure  from 
the  study  of  comparative  law  all  its  possible  advantages. 

The  true  method,  we  believe,  is  the  one  which  we  recog- 
nized as  proper  in  the  study  of  the  history  of  institutions, 
of  which  comparative  legislation  is  merely  acontinuation.32 
This  fact  was  realized  and  emphasized  by  Flach.  He  was 
the  first  to  put  the  method  into  actual  practice,33  and  it  has 
since  been  approved  by  the  most  distinguished  jurists.34 

Comparative  law  must,  indeed,  be  closely  related 
to  the  history  of  legal  institutions,  which  it  merely  con- 
tinues by  taking  them  up  precisely  at  the  point  where 
history  leaves  them.  In  comparative  law,  as  in  the 
history  of  law,  we  should,  therefore,  observe  and  analyze 
the  relations  between  juridical  institutions  and  the 
political,  economic,  and  social  organization  of  the  coun- 
tries where  they  come  into  existence,  and  examine  that 
mutual  dependence  which  makes  so  fascinating  and 
instructive  a  study.  Institutions  are  to  be  studied 
with  reference  to  the  atmosphere  in  which  they  developed, 

31  Tliis  matter  will  be  considered  in  §  7. 

«  Since  Lambert  reduces  comparative  law  to  a  mere  art,  it  follows 
that  though  admitting  the  assistance  which  the  history  of  law  readers 
this  science,  he  does  not  believe  that  it  can  adopt  the  same  method.  Cf. 
Lambert,  ibid.  pp.  913-926. 

"In  his  course  of  comparative  civil  law  (in  the  subjects  of  family 
and  property  law)  which  he  has  taught  for  more  than  twenty-five  years 
in  the  Ecole  Libre  des  Sciences  Politiques. 

»*Bufnoir,  "Bulletin  de  la  Socicte  de  Legislation  Comparee"  (1890), 
p.  60;  Saleilles,  "Conception  et  objet  de  la  science  du  droit  compare,"  in 
"Bulletin  de  la  Societe  de  Legislation  Comparee"  (1900),  p.  395. 


§6]  COMPARATIVE  LAW  459 

for  otherwise  they  cannot  be  understood  and  our  work 
will  but  amount  to  a  feat  of  learning  or  of  memory.  It 
is  impossible,  for  example,  to  understand  the  agrarian 
legislation  of  England,  Germany,  or  Russia,  unless  we 
know  the  influence  which  large  landholdings  have  had 
upon  the  national  and  foreign  policy  of  these  countries. 
As  with  the  history  of  law,  the  study  of  comparative 
law  should  begin  with  the  fundamental  principles  of 
the  legal  institutions  of  the  four  groups  of  countries 
indicated.  The  student  will  observe  the  relation  of  the 
institutions  to  the  conditions  in  which  they  developed; 
the  modifications  through  which  they  passed  in  each 
group  of  countries,  by  reference  to  the  diversity  or 
identity  of  the  influences  which  were  at  work  upon 
them;  and  the  changes  in  statutes  and  decisions  which 
may  have  taken  place  by  reason  of  these  influences. 
This  general  survey  will  provide  an  excellent  acquaint- 
ance with  the  nature  of  the  institutions  which  are  to 
be  studied  later.  After  this,  the  study  of  the  institu- 
tions of  each  of  the  four  groups  of  countries  will  be 
begun  again  in  greater  detail,  and  they  and  their  results 
will  be  compared.  In  this  way  it  will  be  evident  whether 
any  tendency  towards  uniformity  is  manifest  among 
the  different  laws  as  a  result  of  the  similarity  of  the 
phenomena  which  caused  them,  or  whether,  on  the  con- 
trary, any  appreciable  divergence  is  observable.  In 
the  latter  case  the  question  will  arise  why  there  has 
been  this  divergence,  and,  wherever  the  causes  do  not 
seem  irrevocably  opposed,  the  system  will  be  sought 
which  has  already  obtained  or  appears  to  enjoy  the 
weight  of  approval  of  the  principal  nations.35 

3i  This  was  the  method  and  the  conception  of  comparative  law  pur- 
sued by  the  author  in  his  thesis  for  the  "doctoral"  at  the  University  of 
Paris:  "Influence  des  phenomenes  politiques,  economiques,  et  sociaux, 
sur  1 'organisation  de  la  famille  moderne."  Since  1900  he  has  taught  this 
subject,  as  a  course  on  comparative  civil  law,  at  the  University  of  Chile. 


460      ALVAREZ:   METHODS  FOR  CODES  [CH.XI 

§  7.  True  Basis  and  Object  of  Jurisprudence.  Juris- 
prudence has  as  yet  no  settled  foundation.  This 
accounts  for  the  discredit  in  which  it  lingers.  So  far 
it  has  had  but  a  metaphysical  substructure,  called 
natural  law  or  the  philosophy  of  law.  The  influence 
which  this  conception  has  exercised  upon  the  under- 
lying principles  and  governing  ideas  of  codification, 
upon  the  interpretation  of  law,  and  upon  the  legal 
mind  in  general,  has  already  been  made  clear. 

The  progress  due  to  the  inductive  method  in  the 
natural  sciences  brought  with  it  a  reaction  against  this 
metaphysical  tendency  in  law.  There  was  a  desire 
to  build  up  jurisprudence  by  the  methods  and  in 
accord  with  the  findings  of  natural  science,  especially 
of  biology  and  anthropology;  it  was  even  thought  that 
the  science  of  law  should  be  guided  along  evolutionary 
lines.  These  tendencies  were  developed  by  a  school 
which  enjoys  a  numerous  following,  especially  in  Italy.36 
The  results  obtained  by  this  school  lacked  definiteness, 
because  its  basis  was  not  definite.  Other  opinions 
favored  the  history  of  institutions  as  the  sole  data  upon 
which  to  construct  the  science.  But  such  a  basis  is 
inadequate. 

True  jurisprudence  can  be  founded  only  on  a  critical 
observation  of  institutions  in  their  time  and  space  rela- 
tions, and  of  the  influence  of  surrounding  facts  upon  them. 
Only  in  this  way  shall  we  grasp  the  living  principle  of 
the  law:  that  is,  the  interdependence  of  institutions, 
their  successive  changes,  the  relations  of  cause  and  effect 
binding  them,  their  guiding  principle.  Jurisprudence 
will  then  be  a  social  science;  in  place  of  serving  as  a 
foreword  to  the  study  of  law,  as  it  is  to-day,  it  will  be 

"Among  them,  Cimbali,  "La  nouvelle  phase  du  droit  civil"; 
D'Aguanno,  "La  Reforme  integrate  de  la  legislation  civile,"  especially 
chap,  vi;  Chironi,  "Sociologie  et  droit  civil";  Saint-Marc,  "Droit  et 
sociologie,"  in  "Revue  critique  de  legislation"  (1888),  p.  59. 


§7]  THE  NEW  JURISPRUDENCE  461 

the  conclusion,  because  it  summarizes  all  the  years  of 
work. 

Evolved  from  this  basis,  jurisprudence  (or,  for  those 
who  dislike  the  term,  the  history  of  law  and  comparative 
law),  is  destined  to  fill  the  place  of  natural  law  and  to 
exercise  the  scientific  and  practical  influence  which 
natural  law  has  had  and  still  enjoys  to-day.  It  will 
be  a  true  philosophy,  in  the  sense  that  its  aim  is  the 
knowledge  of  things;  it  will  shed  a  new  light  upon  the 
philosophical  foundation  and  the  object  of  law,  a  problem 
which  has  been  the  preoccupation  of  philosophers  for 
centuries.  Foundation  and  object  wTill  no  longer  appear 
absolute  and  invariable,  as  they  did  to  the  metaphysical 
jurist;  nor  will  they  be  derived,  regardless  of  history, 
from  doctrinal  conceptions,  as  certain  philosophers 
would  have.37  On  the  contrary,  they  will  appear  essen- 
tially relative,  as  the  resultant  of  the  social  and  political 
conditions  of  the  epoch.  The  object  of  law  at  the  time 
of  the  Code  was  declared  to  be  to  guarantee  liberty  and 
equality;  these  two  aims  have  been  realized;  social 
conditions  have  changed,  and  the  function  of  law  has 
now  come  to  be  to  realize  social  solidarity  and  the 
brotherhood  of  man. 

1:  JURISPRUDENCE  AS  AN  IDEAL.  The  new  juris- 
prudence will  furnish  a  true  ideal  for  the  guidance  of 
law.  The  metaphysical  and  philosophical  study  of 
law  has  so  discredited  the  conception  of  a  juridical  ideal 
that  the  very  expression  "philosophy  of  law"  has 
become  synonymous  with  what  is  impossible  and  absurd. 
The  ideal  of  the  new  jurisprudence  will  be  quite  different. 
It  will  not  adopt  as  a  model  some  final  and  universal 
form  of  legislation,  but  one  or  more  types  of  legal 

«  Especially  Fouillee,  "L'Idee  moderne  du  droit"  (4th ed.,  Paris,  1897), 
bk.  i,  p.  1  [translated  in  part  in  vol.  vii  of  the  present  Series,  "Modern 
French  Legal  Philosophy."  —  TRANSL.] 


462      ALVAREZ:   METHODS  FOR  CODES  [Cn.Xl 

institutions  which  represent,  for  the  countries  where  they 
are  as  yet  unknown,  an  ideal  of  justice  easy  to  attain. 
This  will  stimulate  in  these  countries  a  movement 
favoring  opportune  reforms,  all  the  more  intense  as 
elsewhere  similar  phenomena  have  already  appeared 
which  have  aroused  new  legislation.  The  norm  fur- 
nished by  the  new  science  will  not  be  abstract  and 
absolute  as  formerly,  but  material  and  relative,  depend- 
ing on  considerations  of  time  and  place,  and  ever  sus- 
ceptible of  further  refinement  as  it  is  attained. 

So  we  propose  to  revive  under  its  true  aspect  a  science 
of  social  ideals,  as  certain  sociologists  call  it  who  realize 
the  need  for  such  a  science  but  know  not  how  to  create 
it.38 

2:  JURISPRUDENCE  AND  INTERNATIONAL  LAW. 
Another  object  of  jurisprudence,  closely  allied  to  the  pre- 
ceding, will  be  to  give  prominence  to  the  international 
side  of  legal  relationships  and  the  best  manner  of 
regulating  them.  We  have  noted  that  legal  relation- 
ships are  becoming  international  and  thereby  uniform. 
This  fact  gives  rise  to  a  new  phase  of  civil  law  and  of 
international  private  law,  which  thereby  tend  to  become 
one.  Jurisprudence  will  indicate  the  civil  relationships 
that  have  an  international  character,  and  international 
private  law  will  be  instructed  as  to  the  method  of  regu- 
lation best  suited  to  them. 

Certainly  there  is-  no  reason  to  protest  that  judges 
and  jurists,  participating  in  the  elaboration  of  this  new 
phase  of  private  international  law,  depart  from  their 
true  function.  In  this  they  no  more  depart  from  their 
true  r61e  than  in  filling  their  new  mission  in  the  inter- 
pretation of  legal  texts.  In  the  two  cases  they  owe 

88  Cf.  Georges  Renard,  "La  Methode  d'etude  de  la  question  sociale," 
in  "Revue  Socialiste"  (Jan.  15,  1897);  "Le  Regime  socialiste"  (4th  ed. 
Paris,  1904),  App. 


§7]  THE  NEW  JURISPRUDENCE  463 

their  function  to  the  very  nature  of  legal  relationships. 
However  great  the  court's  respect  for  the  letter  of  the 
law,  does  it  not  to-day,  in  certain  conflicts  of  private 
international  law,  disregard  territorial  law  and  give 
effect  to  foreign  law,  even  without  the  express  mandate 
of  a  statute?  Still  more  must  this  be  true  in  the  forma- 
tion of  the  future  rules  of  this  branch  of  law. 

Jurisprudence,  then,  will  be  the  surest  basis  for  the 
formation  and  the  development  of  this  new  phase  of 
private  international  law. 

3:  JURISPRUDENCE,  LEGISLATION,  AND  JUDICIAL 
DECISIONS.  Jurisprudence  will  also  furnish  a  sure 
compass  to  legislator,  judge,  and  lawyer. 

The  legislator  is  enlightened  as  to  the  type  or  types 
of  legislation  existing  elsewhere,  and  its  advantages 
and  disadvantages.  It  is,  so  to  say,  an  anticipation  of 
experience,  by  which  the  legislature  of  any  country 
may  profit.  It  does  not  follow  that  the  lawmaker 
should  introduce  without  change  the  type  of  legis- 
lation which  has  been  suggested  to  him.  He  must 
adapt  it  further,  wherever  he  deems  it  necessary  or 
wherever  uniformity  of  legislation  is  still  impossible 
under  the  political  and  social  conditions  obtaining  in 
his  country.  As  affording  the  legislator  the  means  of 
realizing  progressively  his  social  ideal  without  violent 
disturbance,  our  modern  jurisprudence  is  very  different 
from  the  earlier  science  which  took  no  thought  of  the 
means  by  which  it  might  effect  its  ideal;  and  very  dif- 
ferent, too,  from  the  Revolutionary  notion,  which  was 
merely  an  appeal  to  violence. 

The  judge  and  the  lawyer  are  also  ably  served  by  the 
new  science,  which  guides  them  in  their  application  of 
national  law,  whenever  it  is  borrowed  from,  or  in  imita- 
tion of,  the  legislation  of  other  States.  Where  there 
is  as  yet  no  national  law  on  the  subject,  our  science 


464      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

is  valuable  in  laying  the  ground  and  directing  the  develop- 
ment of  judge-made  law,  which,  as  we  have  seen?  is  the 
surest  source  from  which  we  may  determine  the  direc- 
tion in  which  social  change  is  directing  the  evolution 
of  institutions.  In  jurisprudence  the  judge  and  lawyer 
will  discover  the  true  soul  of  legislation,  which  is,  indeed, 
nothing  more  than  the  new  general  tendencies  manifest 
in  institutions.  It  is  useful  to  understand  this  spirit 
if  we  would,  so  far  as  old  statutes  permit,  shape  the  direc- 
tion of  juridical  interpretation.  In  this  way  the  courts 
may,  in  full  possession  of  the  facts,  set  out  resolutely 
along  the  path  traced  by  jurisprudence,  schooling  the 
legislator  in  the  reforms  which  he  is  to  effect. 

These  are  not  all  the  purposes  of  the  new  science. 
Others  there  are  no  less  important.  It  will  form  a  new 
juridical  criterion  essentially  positive  and  quite  free 
of  that  metaphysical  quality  which  is  typical  of  our 
present  standard.  Finally  it  will  aid  a  true  development 
of  sociology,  which  has  so  far  remained  empirical  and 
unable  to  get  away  from  purely  metaphysical  specula- 
tion, principally  because  jurisprudence,  its  surest  support, 
has  not  yet  been  placed  upon  its  true  footing. 

II.    THE  FUTURE  OF  CODIFICATION 

§  8.  Principles  Underlying  Future  Codification.  In 
what  terms  shall  we  state  the  problem  of  future  codi- 
fication, for  the  countries  where  codification  has  been 
adopted  ? 

In  France,  as  indeed,  in  all  countries  of  codification, 
it  is  commonly  believed  to  be  merely  a  problem  of  a 
more  or  less  complete  revision  of  the  Codes,  with,  at 
most,  an  investigation  into  the  governing  ideas  which 
are  to  enter  into  it.  Even  so  regarded,  the  idea  of  entire 
recodification  has  adherents  in  Italy,  but  very  few  in 


§8]  FUTURE  CODIFICATION  465 

France.  Not  that  such  a  task  is  regarded  as  impossible, 
but  the  feeling  is  that  it  is  proper  to  leave  to  the  courts 
the  task  of  adjusting  the  law  to  society;  or  that  the 
present  Code  satisfies  practical  needs  and  therefore 
the  only  purpose  of  a  revision  would  be  to  incorporate 
enactments  voted  since  the  Code  went  into  effect.39 

We  believe  that  our  investigation  so  far  suffices  to 
dismiss  this  view.  The  problem  of  future  codification 
is  still  with  us  in  all  its  complexity;  it  is  one,  indeed, 
of  exceeding  delicacy. 

Shall  we  proclaim  the  failure  of  codification  and  extol 
the  English  system,  which,  as  has  been  shown,  does  not 
possess  the  same  defects? 

We  might,  at  first,  be  the  more  tempted  to  do  so, 
since  the  interdependence  and  mobility  of  legal  relation- 
ships render  codification  each  day  more  difficult.  This 
is  indeed  the  reason  urged  against  the  attempt  in  the 
field  of  administrative  law.  There,  not  only  is  codi- 
fication impossible,  they  say,  but  it  would  be  a  distinct 
disadvantage,  because,  while  it  remains  uncodified,  this 
law  is  more  easily  inspired  by  considerations  of  general 
utility.  It  is  called  a  law  of  equity,  comparing  it  to 
English  law.40  And  the  further  claim  is  made  that  with- 
out codification  the  court  can  more  easily  extend, 
mold,  or  even  create  rules  of  law;  it  is  this  fact  that 
has  led  the  decisions  of  the  French  Council  of  State 
to  be  called  "quasi-praetorian"  or  "semi-praetorian."  41 
These  considerations,  which  are  generally  looked  upon 
as  conclusive  in  administrative  law,  seem  no  less  so  in 
civil  law. 

» The  last  opinion  is  that  of  a  recent  work  on  civil  law,  intended 
as  a  textbook  for  teaching,  by  Surville,  "Elements  d'un  cours  de  droit 
civil  francais"  (Paris  1904),  vol.  i,  no.  78. 

«  Hauriou,  "Precis  ae  droit  administratif"  (oth  ed.,  Paris  1903), 
pp.  x-xi. 

^Laferrttre,  "Traite  de  la  juridiction  administrative  et  du  recours 
contentieux"  (2d  ed.,  Paris  1896),  vol.  ii,  p.  411. 


466       ALVAREZ:   METHODS  FOR  CODES  [Cii.XI 

Such  a  solution,  however,  would  be  too  hasty.  Despite 
disadvantages  and  difficulties,  codification  possesses 
other  weighty  advantages  which  it  is  important  to 
preserve.  A  flat  affirmative  to  the  question  would, 
therefore,  be  extreme;  it  would  be  preferable  to  work 
out  a  system  of  codification  upon  underlying  principles, 
permitting  of  the  adjustment  of  private  law  to  social 
change,  without  opposing  it  or  concealing  it,  and  yet  con- 
ferring upon  legal  institutions  the  same  security  as  under 
the  Napoleonic  Code. 

This  will  be  our  first  problem ;  later  we  shall  discuss 
the  governing  ideas  which  should  inspire  the  new  codi- 
fication, and  the  method  most  likely  to  bring  success. 

1:  THEORIES  AS  TO  THESE.  Scarcely  any  one  has 
raised  the  question  as  to  what  principles  shall  underlie 
future  codification  in  order  to  avoid  the  defects  of  the 
existing  system.  And  yet  this  problem  is  of  the  highest 
importance.  One  by  one,  with  critical  eye,  we  must 
examine  the  principles  underlying  the  present  codifica- 
tion ;  in  so  doing  we  may  be  led  to  judge  which  to  retain 
and  which  to  reject. 

As  to  the  principles  underlying  future  codification, 
there  are,  to  our  knowledge,  but  two  theories  and  two 
facts  to  which  we  may  turn  as  a  basis  of  study.  The 
facts  are  the  Civil  Codes  of  Spain  and  Germany. 

(a)  The  first  theory  which  we  must  consider  is  that 
of  the  French  writers,  to  whom  we  have  already  given 
some  attention.  According  to  them  the  defects  of  the 
existing  codification  are  due  wholly  to  the  fact  that  it 
closes  all  other  sources  of  law  except  legislation,  in  par- 
ticular custom  and  judge-made  law.  The  principles 
underlying  codification  should  be  altered,  therefore,  so 
as  to  admit  these  in  the  future  as  sources  of  law. 

Without  spending  more  time  over  a  theory  already 
discussed,  we  would  suggest  that  .these  authors,  uncon- 


§8]  BASAL  PRINCIPLES  46? 

sciously  perhaps,  are  returning  by  a  mere  detour  to  the 
system  of  the  early  French  law,  or  to  the  present  system 
of  English  law,  whose  very  defects  we  would  avoid. 

(b)  The  second  theory  was  put  forward  by  the  Swiss 
jurist  Roguin.  He  advocates  an  honest  departure 
from  the  traditional  principles  underlying  codification. 
Above  all,  he  believes  that  there  must  be  an  absolute 
separation  of  the  legislative  and  judicial  functions. 
The  legislature  alone  should  have  the  power  to  make 
law;  the  courts  should  be  limited  to  applying  it  strictly, 
according  to  the  intent  of  the  legislator,  without  concern 
for  any  other  consideration. 

How,  then,  does  Roguin  propose  to  maintain  har- 
mony between  codified  law  and  society?  He  does  not 
concede  a  return  to  custom,  nor  would  he  confide  to 
courts  and  text-writers  the  task  of  progressively  improv- 
ing the  law;  he  is  equally  opposed  to  the  adoption  of 
incomplete  laws  dictated  as  practical  needs  make  them- 
selves felt.  He  concludes  that  the  "only  possible  and 
rational  means,  the  only  means  which  seems  to  present 
no  disadvantage  and  to  meet  the  danger  of  the  stiffening 
and  crystallizing  of  the  civil  law,  is  to  undertake  periodi- 
cal and  complete  recodifications." 42  With  this  view 
he  proposes  to  provide  constitutionally  that  a  general 
revision  of  the  civil  code  shall  be  made,  say  every  twenty- 
five  years,  and  that  the  legislature  shall  be  legally 
obligated  to  throw  the  entire  code  open  to  discussion 
and  restudy.  There  would  be  no  obligation  to  change 
the  law  at  each  revision,  but  only  when  the  necessity 
was  evident.  At  the  close  of  each  period  of  twenty- 
five  years  a  new  edition  of  the  law  would  be  published, 
and  in  this  way  both  the  profession  and  the  laity  would 
possess  a  collected  body  of  law  which  they  might  consult 

42  Roguin,  "Observations  sur  la  codification  des  lois  civiles"  (Lausanne 
1896),  pp.  77-98. 


468      ALVAREZ:   METHODS  FOR  CODES     CH.  XI 

and  apply  without  turning  to  prior  texts.  There  would 
be  an  absolute  legislative  novation. 

In  a  word,  Roguin  expressly  proposes  to  imitate  the 
Russian  system.43  He  borrows  also  from  the  system 
of  the  Spanish  Civil  Code  of  1889,  of  which  we  shall 
speak  later.  He  would  perfect  his  system  by  the  crea- 
tion of  a  special  commission  whose  duty  would  be  to' 
prepare  reforms  and  lay  them  before  the  legislature, 
which  alone  would  have  the  right  to  vote  upon  them.44 

As  to  the  style  of  expressing  the  legislative  intent, 
Roguin  does  not  favor  brevity.  On  the  contrary,  he 
believes  that  laws  should  develop  their  subject;  they 
should  expressly  cover  the  concrete  problems  which  may 
arise,  although  this  should  not  prevent  their  also  stating 
abstract  rules.  The  work  of  the  legislator  must,  there- 
fore, be  both  universal  and  particular.  Progress,  he 
believes,  consists  in  increasing  the  provisions  of  the  code 
and  in  combining  general  and  specific  rules.  But  such 
a  method  would  be  still  far  from  producing  a  perfect 
code,  a  "code  answering  all  difficulties  with  ease."  To 
attain  his  ideal  as  nearly  as  possible,  Roguin  suggests 
that,  alongside  the  code,  conceived  as  we  have  just 
indicated,  "an  official  commentary  be  voted  by  the 
legislature  simultaneously  with  the  code  itself,  physically 
forming  a  part  of  it,  and  possessing  the  same  binding 
force."  The  commentary  would  be  the  work  of  a  legis- 
lative committee,  an  executive  council,  or  other  similar 
body.  Along  with  the  commentary  should  be  added 
a  glossary  of  the  terms  employed  which  would  be  given 
official  sanction  at  the  same  time  as  the  commentary. 
Roguin  cites  a  precedent  from  private  international 
law  supporting  his  idea  of  an  official  commentary:  the 

«  Cf.  Korkounov,  "Cours  de  theorie  generate  du  droit"  (French  trans, 
by  Tchernoff,  Paris,  1903  [Eng.  trans,  in  this  Series,  by  W.  G.  Hastings, 
Boston,  1909]). 

"  Roguin,  op.  cit.  pp.  98-104. 


§8]  BASAL  PRINCIPLES  469 

Franco-Swiss  Convention  of  1869  upon  jurisdiction  and 
the  execution  of  civil  judgments.  This  Convention 
is  accompanied  by  an  explanatory  memorandum  which 
possesses  equal  force  with  the  treaty  itself.45 

Roguin  thus  summarizes  his  ideas:  "The  law  should 
be  the  work  of  the  legislator  alone.  It  should  aim  to 
settle  all  the  difficulties  that  have  been  foreseen.  It 
should  be  interpreted  solely  in  the  light  of  its  author's 
intention.  Its  form  must  be  logical  and  clear,  its  lan- 
guage precise  and  unvarying."  46 

It  is  evident  that  his  ideas  may  be  reduced  to  two: 
to  maintain  the  code  in  agreement  with  social  needs  by 
periodical  revisions,  and  to  make  the  intent  of  the  legis- 
lator clear  on  every  occasion.  He  would  have  all  prob- 
lems answered,  therefore,  either  by  the  code  or  by  the 
official  commentary;  the  function  of  the  judge  would 
be,  perhaps,  more  mechanical  than  under  the  present 
system,  for  he  would  be  limited,  in  each  case,  to  a  strict 
application  of  the  intention  of  the  legislator. 

Of  Roguin's  fundamental  ideas,  one,  that  of  periodic 
revision,  is  acceptable  and  even  necessary.  The  other, 
which  demands  that  the  legislator  anticipate  every 
problem,  either  through  the  law  itself  or  the  official 
commentary,  is  neither  acceptable  nor  necessary,  since 
it  is  incompatible  with  the  growing  variety  and  natural 
dependence  of  legal  relationships.  To  ask  that  the 
legislator  provide  against  every  eventuality  and  that 
the  judge  create  nothing,  is  to  go  against  the  very 
nature  of  legal  relationships.  We  shall  see  how 
these  require  of  the  legislator  a  more  and  more  elastic 
regulation,  and  this  means  that  the  court  must 

«  He  might  have  cited  with  even  greater  force  the  Convention  of 
March  20,  1883,  for  the  protection  of  industrial  property,  and  the  Con- 
vention of  Sept.  9,  1886,  for  the  protection  of  literary  and  artistic  prop- 
erty (final  memorandum). 

«  Roguin,  op.  cit.  p.  133. 


470       ALVAREZ:    METHODS  FOR  CODES  [Cn.XI 

enjoy  ever  broader  powers  to  adjust  the  law  to  social 
environment. 

2:  THE  SPANISH  CIVIL  CODE.  Let  us  pass  now  to 
the  examination  of  facts,  and  first  the  Civil  Code  of 
Spain. 

In  three  supplementary  articles,  this  Code  requires 
that  the  Chief  Justice  of  the  Supreme  Court  and  the 
Chief  Justices  of  the  Courts  of  Appeal  present  each  year, 
to  the  Minister  of  Justice,  a  report  upon  the  deficiencies 
and  difficulties  which  have  become  apparent  in  applying 
the  Code;  they  shall  point  out  in  detail  the  questions 
and  points  of  law  controverted  and  the  articles  and 
omissions  which  may  have  given  rise  to  doubt.  The 
Minister  of  Justice  is  ordered  to  transmit  this  report, 
along  with  the  data  furnished  by  the  civil  statistics  for 
the  year,  to  the  General  Commission  on  Codification. 
The  Commission,  after  studying  these  documents,  the 
decisions  of  the  Supreme  Court,  and  the  progress  made 
in  other  countries  which  it  believes  might  be  introduced 
into  Spain,  formulates  every  ten  years  the  reforms 
which  it  deems  opportune,  and  submits  them  to  the 
Government. 

This  machinery  created  by  the  Spanish  Code  certainly 
marks  a  long  step  forward  in  codification.  It  was  not, 
however,  absolutely  original  with  Spain.  The  Civil 
Code  of  Chile  of  1855  contains  similar  provisions,  though 
less  complete.  It  had  borrowed  the  idea,  perfecting  and 
developing  it,  from  a  provision  of  early  Spanish  law 
that  the  judges,  in  case  of  doubt,  should  refer  the  sub- 
ject to  the  attention  of  the  appropriate  official.47 

"  [Cf.  Alvarez,  "Une  nouvelle  conception  des  etudes  juridiques  et 
de  la  .codification  du  droit  civil  (Paris,  1904)  p.  56,  note  (1),  translated 
in  "Continental  Legal  History  Series,"  vol.  xi.  In  general  agreement 
with  the  Chilian  Civil  Code  art.  5,  should  be  mentioned  the  French  Act 
of  July  30,  1828,  Dalloz,  "Jurisprudence  generale,"  1828,  iii,  p.  3, 
art.  3 :  "Dans  la  session  legislative  qui  suit  le  refere,  une  loi  interpretative 
est  proposee  aux  chambres,"  "Bulletin  des  lois,"  no.  244,  Law  no.  8800. 


§8]  THE  GERMAN  CODE  471 

3:  THE  GERMAN  CIVIL  CODE.  The  German 
Civil  Code,  though  it  represents  to-day  the  last  word 
in  legislative  science  and  is  destined  to  serve  as  a 
model  for  future  lawmakers,  maintains  nevertheless  the 
underlying  principles  of  the  French  Civil  Code;  indeed, 
the  question  of  underlying  principles  was  not  given  due 
consideration  in  the  drafting  of  the  German  Code. 

It  does  contain,  however,  a  few  express  innovations. 
As  to  the  sources  of  law,  the  German  Code  is  silent  upon 
the  legal  value  of  custom.  This  permits  the  German 
lawyer  to  infer  that  a  general  or  imperial  custom  may 
exist,  as  binding  as  the  written  law,  and  capable,  there- 
fore, of  completing,  modifying,  or  even  annulling  it.  As 
to  local  custom,  the  question  remains  in  lively  debate.48 

The  legal  technology  and  terminology  of  the  new  Code 
offer  some  very  characteristic  features  and  are  of  great 
importance  from  the  point  of  view  of  interpretation. 
Indeed,  not  only  was  every  conception  of  a  doctrinal 
nature  banished  from  the  text,  not  only  was  no  concep- 
tion clothed  in  legal  formula,  but  even  where  it  was 
necessary  to  adopt  one  impliedly,  as  where  one  or  another 
of  concrete  solutions  had  to  be  accepted,  it  was  specific- 
ally declared  that  theories  of  this  sort  had  no  obligatory' 
force  in  law  but  remained  subject  to  the  criticism  and 
fluctuations  of  legal  thought.49  But  while  the  German 
legislator  has  refrained  from  making  juridical  theories 

This  Act  was  repealed  by  the  Act  of  April  1,  1837,  reported  with  the 
"expose  des  motifs"  in  Dalloz,  "Jurisprudence  generale,"  1837,  iii, 
p.  152.  Cf.  also  Uruguay,  Civil  Code,  art.  14;  Ecuador,  ibid.,  art.  19, 
and  Peru,  ibid.,  art.  11.  —  TRANSL.] 

tsSaleilles,  "Introduction  a  1'etude  du  droit  civil  allemand"  (Paris, 
1904),  no.  ix;  and  "Introduction"  to  the  official  French  trans,  of  the 
German  Civil  Code,  published  by  the  Comite  de  Legislation  Etrangere 
(Paris,  1904),  vol.  i,  no.  xvi;  Geny,  "Methode  d'interpretation  et  sources 
en  droit  prive  positif,"  pp.  384  seq.  [and  his  chapter  translated  post  in 
the  present  volume]. 

49 Saleilles,  "Introduction  a  1'etude  du  droit  civil  allemand,"  p.  105; 
"Introduction"  to  French  trans,  of  German  Civil  Code,  no.  xxiv. 


472      ALVAREZ:   METHODS  FOR  CODES  [CH.XI 

into  law,  he  has  not  excluded  legal  definitions.  On  the 
contrary,  they  are  very  numerous  and  form  one  of  the 
most  noticeable  characteristics  of  the  new  Code.  These 
definitions  never  aim  to  formulate  a  theoretical  or  abstract 
conception.  They  are  limited  to  indicating  the  precise 
and  concrete  meaning  of  certain  expressions  employed 
throughout  by  the  legislator.50 

The  German  Code  contains  some  bold  provisions 
regulating  the  powers  of  the  judge.  The  judge  is  not 
restricted,  as  in  other  countries,  to  the  simple  interpre- 
tation of  the  letter  of  the  law.  He  may,  in  certain  cases 
and  under  certain  conditions,  limit  the  exercise  of  rights, 
or  modify  a  contract;  in  several  instances,  also,  he 
possesses  a  discretionary  power  to  decide  each  case 
according  to  its  equities  instead  of  having  to  apply  a 
rigidly  imposed  rule.  This  has  been  rightly  called  the 
first  effort  at  judicial  individualization  of  the  law  in  civil 
matters.51 

Finally,  with  regard  to  interpretation,  although  the 
Code  refrains  from  expressly  adopting  any  system,  it 
is  apparent  from  the  preliminary  work  of  drafting,  that 
that  of  Saleilles,  already  referred  to,  was  accepted,  and 
of  the  few  text-writers  who  have  devoted  time  to  this 
subject  two  are  clearly  of  this  opinion.52 

On  the  whole,  the  German  Civil  Code  has  not  solved 
the  problem  of  the  underlying  principles  of  codification, 
and  in  this  particular  it  cannot  be  used  as  a  model  for 
future  legislation.  It  is  an  advance;  but  it  is  to  be 
feared  that  it  will  soon  become  antiquated  and  give  rise 
to  the  same  inconveniences  as  have  marked  French 
codification. 

•«  Saleilles,  "Introduction  a  1'etude  du  droit  civil  allemand,"  pp.  110 
seq. ;  "Introduction"  to  French  trans,  of  German  Civil  Code,  no.  xxiv; 
for  the  list  of  definitions  and  technical  expressions,  ibid.,  pp.  xli-xliv. 

"  Saleilles,  "Introduction  a  1'etude  du  droit  civil  allemand,"  p.  118. 

H  Holder  and  Ehrlich.     Cf.  Saleilles,  ibid.,  no.  x. 


58]  THE  PROBLEM  473 

4:  THE  PROBLEM  OF  THE  UNDERLYING  PRINCIPLES. 
We  must,  therefore,  sta'te  more  definitely  than  heretofore 
the  problem  of  the  principles  that  should  underlie 
future  codification.  To  give  to  codification  the  advan- 
tages so  far  indicated,  it  is  first  necessary  to  specify 
the  precise  point  from  which  the  legislator  is  to  set  out. 
To  /do  this  we  must  rid  ourselves  of  prejudices,  and 
seriously  observe  the  advantages  and  disadvantages 
traceable  during  the  1800s  to  the  principles  underlying 
the  present  codification,  as  well  as  to  those  underlying 
the  prevalent  new  legislation.  We  have  already  ex- 
amined both;  we  saw  how  everywhere  modern  laws 
are  inspired  by  new  governing  ideas ;  that  they  rest  upon 
other  bases  than  formerly;  and  that  to  this  fact  we 
chiefly  owe  the  discord  between  the  old  codification 
and  the  new  legislation.  When  we  reexamine  the  most 
important  of  the  principles  underlying  French  codi- 
fication with  a  view  to  determining  what  to  retain  and 
what  to  reject,  we  must  first  decide  whether  the  written 
law  is  to  be  the  sole  source  of  rules  to  govern  legal  relation- 
ships. 

Now  the  truth  is  that  this  usual  way  of  putting  the 
question  is  unsatisfactory.  The  problem  really  is,  What 
authority  should  have  the  power  to  create  law? 

In  our  opinion,  it  is  impossible  that  in  the  future  this 
duty  should  devolve  upon  the  legislature  alone.  The 
complexity  and  flexibility  of  relationships  are  opposed 
to  the  idea.  Rules  of  law  should  be  pronounced  by  a 
power  which  does  not  encounter  parliamentary  obstacles 
in  its  elaboration,  and  which  also  can  lend  ear  to  all 
the  forces  creative  of  new  legal  relationships.  In  other 
words,  a  system  must  be  found  which,  without  giving 
the  force  of  statute  to  judicial  decisions  or  custom,  yet 
takes  them  into  account  as  well  as  other  elements  which 
really  make  juridical  relationships. 


474      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

Now  this  object  can  only  be  obtained  by  employing 
a  double  means.  First,  the  principle  which  is  still  so 
profoundly  ingrained,  that  of  the  separation  of  legislative 
and  judicial  functions,  must  be  abandoned;  each  of  these 
powers  must  be  permitted  to  regulate,  within  set  limits, 
the  relationships  of  law.  Furthermore,  upon  certain 
groups  of  society  should  be  conferred  the  power  to  adopt 
rules  of  conduct  binding  all  members  of  the  group. 
This  is  a  principle  which  would  permit  the  ideal  of 
democracy  to  penetrate  to  the  very  depths  of  the  reali- 
ties of  life  and  law. 

5:  LEGISLATIVE  POWERS  OF  THE  JUDICIARY  AND  OF 
CERTAIN  GROUPS,  (a)  The  reason  for  the  separation 
of  the  executive  and  judicial  powers  was  appreciated 
in  the  period  following  the  Revolution.  The  principle 
solidified  the  new  political  regime,  and  was  an  effectual 
guaranty  of  political  liberty.  When  Montesquieu  wrote, 
the  sovereign  holding  the  executive  power  sought  to 
extend  it  wherever  he  could,  to  its  abuse.  To-day, 
within  a  democracy,  republican  in  form,  such  an  abuse 
is  no  longer  to  be  feared.  On  the  other  hand,  if  the 
judicial  power  were  allowed  to  legislate  there  would  be 
a  true  cooperation  between  public  functions,  not  an 
absorption  of  one  by  another. 

It  is  worthy  of  remark  that  in  Imperial  Germany, 
jurists  interested  in  public  law  have  long  been  almost 
unanimous  in  repudiating  the  principle  of  the  separation 
of  these  functions.53  In  France,  on  the  contrary,  it 
retains  its  old  authority,  and  most  authors  accept  the 
principle  without  discussion,54  even  ^reproducing  Mon- 

**Laband,  "Le  Droit  public  de  1'empire  allemand"  (French  trans, 
by  Gandilhon  and  Lacuire,  Paris,  1901),  vol.  ii,  p.  268,  note  2;  contra 
Mayer,  "Le  Droit  administratif  allemand"  (French  ed.,  Paris,  1903), 
vol.  i,  sec.  ii,  §  6,  pp.  83-101. 

"  Rossi,  "Droit  constitutional,"  vol.  iv,  lesson  93;  Jules  Simon, 
"La  Liberte  politique,"  chap,  iii,  no.  5;  Aucoc,  "Introduction  a  1'etude 
du  droit  administratif"  (Paris,  1865),  pp.  24-27;  "Rapport  sur  le  con- 


§8]  THE  SEPARATION  OF  POWERS  475 

tesquieu's  arguments.55  They  recognize,  however,  that 
the  three  constituent  powers  should  not  be  absolutely 
independent  of  one  another,  but  that  merely  their  func- 
tions should  be  kept  distinct. 

If  formerly  legislative  and  judicial  functions  might  be 
absolutely  separated,  it  is  so  no  longer.  The  judiciary, 
like  the  legislative,  should  have  the  power  to  regulate 
legal  relationships;  courts  ought  to  be  able  to  issue 
rules  similar  to  the  "general  orders" 56  of  the  early 
parliaments  of  France.  This  function  would  naturally 
devolve  upon  the  supreme  court  of  appeal,  whose  pur- 
pose so  far  is  merely  to  insure  uniformity  of  interpreta- 
tion by  the  various  courts. 

The  system  in  no  wise  tends  to  make  judicial  opinion, 
especially  that  of  the  supreme  court  of  appeal,  into  a 
source  of  law.  In  that  case  judges  would  remain  bound 
by  the  text  of  the  law,  though  in  their  interpre- 
tations they  would  adjust  it  by  more  or  less  indirect 
means  to  practical  needs.  Our  system,  on  the  contrary, 
vests  a  sovereign  right  in  the  judge  to  lay  down  a  bind- 
ing rule  of  law  without  reference  to  the  interpretation 
of  any  statute.  Thus  legislation  and  judicial  opinion 
will  travel  in  harmony,  and  never  again  be  irreconcilable, 
since  the  court,  when  it  deems  it  opportune  to  introduce 
a  reform,  will  do  so  frankly  by  law. 

This  solution  seems  the  more  imperative  on  examining 
actual  political  conditions.  The  parliamentary  system 

cours  relatif  a  la  separation  des  pouvoirs,"  from  the  report  of  the  "Aca- 
demic des  Sciences  Morales  et  Politiques"  (Paris,  1879)  ;*  Saint-Girons, 
"Essai  sur  la  separation  des  pouvoirs";  Fuzier-Herman,  "La  Separation 
des  pouvoirs"  (Paris,  1880) ;  Ducrocq,  "Cours  de  droit  administratif" 
(7th  ed.  1897),  vol.  i,  nos.  7-54;  Berthelemy,  "Traite  elementaire  de  droit 
administratif"  (1902),  vol.  i,  §  1;  Jacquelin,  "La  Juridiction  adminis- 
trative" (Paris,  1891),  "Introduction"  §§  2-4;  Roguin,  "Observations 
sur  la  codification  des  lois  civiles,"  pp.  77-8. 

•*  Contra  and  adopting  other  reasoning,  VareiHes-Sammtires,  "Les 
principes  fondamentaux  du  droit,"  pp.  228-229. 

»«  ["Arrets  de  reglement."  Cf.  Brissaud,  "History  of  French  Public 
Law,'  p.  445.  —  TRANSL.] 


476      ALVAREZ:   METHODS  FOR  CODES  [Cn.xi 

tends  to  make  the  lawmaking  body  govern  rather  than 
legislate;  the  legislative  trespasses,  consequently,  upon 
the  functions  reserved  to  the  executive.  Why  should 
not  the  judiciary,  then,  in  a  reasonable  measure,  be  a 
substitute  for  the  legislature? 

It  will  be  objected  that  the  same  power  cannot  both 
make  and  apply  the  law.  But  why  not?  May  it  not 
rather  be  true  that  the  lawmaking  power  has  a  very 
special  mission  to  apply  it?  When  the  legislature,  acting 
as  a  constituent  power,  to-day  creates  a  constitution, 
does  it  not  submit  to  that  very  same  constitution  when 
acting  as  legislator?  Does  not  the  executive  head  in 
the  same  way  issue  orders  which  he  and  his  represen- 
tatives will  be  called  upon  to  apply?  Since,  then,  in 
the  case  of  the  constitution  and  of  executive  orders,  the 
power  calling  them  into  existence  is  the  same  as  that 
which  afterwards  applies  them,  why  may  not  the  same 
be  also  true  in  the  case  of  statutory  law ?  If  the  j udiciary 
had  power  to  legislate  upon  questions  of  private  law, 
the  principal  disadvantages  inherent  in  codification 
would  be  obviated. 

What  would  be  the  limits  of  this  authority?  That 
would  be  for  constitutional  or  statutory  law  to  indicate. 
However,  we  may  here  propose  a  rule  in  this  regard. 
When  the  legislator  regulates  relationships  of  private 
law,  his  sole  aim  should  be  to  create  broad  and  flexible 
general  principles,  leaving  to  the  courts  the  work  of 
filling  out  the  law  traced  by  the  legislator;  the  legis- 
lator should  be  content,  therefore — and  it  would 
amply  suffice  —  to  indicate  the  basic  principles  upon 
which  to  establish  juridical  relationships.  To  the 
judicial  power  would  then  fall  the  task  of  regulating 
these  in  a  more  or  less  exact  and  concrete  manner  accord- 
ing as  the  needs  of  society  demanded. 


§8]  THE  SEPARATION  OF  POWERS          477 

(b)  As  to  the  legislative  power  to  be  vested  in  certain 
social  groups,  the  law  should  determine  the  groups  and 
the  nature  of  their  powers.  It  would  pronounce  rules 
of  a  general  nature  to  govern  specially  designated  groups, 
and  these  would  fix  the  details  of  their  application.  They 
should  even  be  given  power  to  settle  the  conflicts  arising 
out  of  their  regulation.  In  conferring  upon  them  the 
power  to  legislate,  the  law  must  make  sure  that  the  rules 
enacted  by  them  shall  be  brought,  through  broad  pub- 
licity, to  the  knowledge  of  all  interested  parties. 

There  is  nothing  novel  in  this  idea.  The  tendency  is 
already  evident  in  certain  groups  who  are  demanding 
the  legislative  privilege,  and  certain  labor  organiza- 
tions have  already  acquired  it  in  a  few  countries.57 

6:  CODIFICATION  BY  INSTITUTION  RATHER  THAN 
SUBJECT.  Another  principle  underlying  codification 
which  should  be  frankly  condemned  is  the  arrangement 
of  the  codes  according  to  subjects,  that  is  to  say,  the 
reuniting  in  one  code  of  everything  referring  to  the 
title  of  the  code.  The  consequence  of  this  is  that  the 
same  institution  is  regulated  by  as  many  different 
codes  as  it  presents  aspects.  Thus  in  France  the  Civil 
Code  governs  the  civil  side  of  property  and  the  Com- 
mercial Code  its  commercial  side,  while  the  Code  of 
Forestry  regulates  its  rural  aspects,  etc.  It  is  im- 
possible, by  such  a  method,  to  grasp  the  true  nature  of 
institutions  and  the  modifications  which  they  are  under- 
going. 

Arrangement  by  subject  cannot  be  adopted  in  future 
codification.  The  reasons  just  mentioned,  and  the 
multiplicity  and  complexity  of  legal  relationships  are 
opposed  to  the  method.  Future  codes  must  be  limited 
to  a  single  institution;  that  is  to  say,  the  same  code 

*7  Jay,  "La  Protection  legale  des  travailleurs"  (Paris,  1904),  p.  217. 


478      ALVAREZ:   METHODS  FOR  CODES  [Cii.XI 

should  regulate  everything  bearing  upon  a  given  institu- 
tion, in  all  its  aspects.  There  will  be  a  code  of  the  law 
of  the  family;  a  code  of  property,  in  which  will  be 
explained,  according  to  a  rational  classification,  all 
forms  of  property:  commercial,  industrial,  agrarian, 
etc. ;  there  will  be  a  code  of  the  law  of  companies,  and 
of  associations ;  another  of  obligations  in  general ;  another 
of  special  varieties  of  contracts,  civil  or  commercial;  a 
code  of  labor,  etc. 

It  is  needless  to  insist  longer  upon  the  advantages 
of  such  a  method  from  the  point  of  view  of  the  law  itself, 
its  interpretation  and  its  study. 

7 :  OTHER  UNDERLYING  PRINCIPLES.  There  are  yet 
other  bases  upon  which  future  codification  should  be 
undertaken.  They  are  derived  from  the  traits  which  we 
have  found  distinguishing  present-day  legal  relation- 
ships, that  is:  multiplicity,  complexity,  elasticity,  and 
social  and  international  tendencies. 

If  codification  is  to  conform  to  them  it  must  rest 
upon  these  principles: 

1.  By   reason   of   their  multiplicity,   the   legislative 
autnority  —  the   judge   being   so   considered   whenever 
that  function  is  conferred  upon  him  —  should  abandon 
the  idea  of  regulating  by  anticipation  and  in  a  single  body 
of    provisions    all    possible    legal    relationships.     They 
should  not,  in  fact,  be  brought  within  the  purview  of 
the  law  until  and  as  they  arise. 

2.  In  view  of  the  complexity  of  society  juridical  princi- 
ples should  be  enacted  in  terms  sufficiently  broad  to  be 
equally  applicable  to  public,  private,  or  international  law. 

3.  The  legislator  should  abandon  his  pretension  to 
regulate  everything  with  the  same  nicety.     In  his  work 
he  must  ever  be  mindful  of  the  degree  of  mobility  of 
the  institution  he  is  regulating.     If  it  is  a  matter  par- 
ticularly varying  in  its  nature,  he  should  feel  his  way, 


§8]  SPECIFIC  PRINCIPLES  479 

drafting  a  trial  law,  actually  legislating  within  the 
narrowest  possible  limits,  and  content  to  extend  the 
action  of  the  new  law  if  it  effectively  accomplishes  the 
aim  proposed. 

4.  The  law  should  be  conceived  in  very  general  terms, 
flexible  enough  to  be  constantly  adapted  by  the  courts 
to  the  circumstances  which  they  face. 

This  principle  would  not  be  new  to  modern  lawmakers, 
since  enactments  of  public  law  already  possess  this 
character  and  the  authorities  charged  with  applying 
them  enjoy  a  large  margin  of  discretion  in  interpretation. 
Constitutional  and  administrative  law,  in  fact,  leave 
unregulated  certain  subjects  of  the  very  highest  import- 
ance. In  this  way  their  free  evolution  is  not  impaired 
by  any  legal  text.  In  criminal  law  and  procedure,  the 
same  is  true.  The  judge  to-day  enjoys  an  increasing 
liberty  not  only  in  his  valuation  of  the  facts  constitut- 
ing the  offense,  but  also  in  applying  the  law.  This  is 
abundantly  evidenced  by  the  recognition  of  attenuating 
circumstances,  the  suspension  of  punishment,  the  theories 
of  the  indeterminate  sentence  and  of  the  individualization 
of  punishment.  Finally,  too,  we  should  recall  the  dis- 
credit into  which  the  mediaeval  system  of  arbitrary 
"legal"  rules  of  proof  has  long  since  fallen. 

5.  The  law  should  be  made  flexible,  but  the  judge  in 
addition  should  be  given  the  threefold,  powers  established 
by  the  German  Code. 

6.  The  power  charged  with  declaring  the  law  should 
also,  by  reason  of  the  very  fact  of  the  increasing  socializa- 
tion of  juridical  relationships,  assure  its  effective  opera- 
tion, especially  if  the  law  directly  affects  public  interests. 
It  should  place  this  supervision  in  the  hands  of  Govern- 
ment representatives  or  of  the  groups  interested. 

8:  THOSE  TO  BE  REJECTED.  Finally,  we  must  con- 
sider those  principles  of  the  old  codification  which  the 


480      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

modern  legislator  should  reject  as  no  longer  appropri- 
ate to  existing  social  conditions. 

First,  the  principle  that  the  application  of  laws  shall 
be  coextensive  with  the  national  territory.  The 
idea  originated  in  France  as  a  reaction  against  the  abuses 
of  the  Old  Regime,  and  it  has  been  exaggerated  in  all 
countries  of  codification.  It  should  be  abandoned, 
particularly  in  countries  extending  across  different 
geographical  zones,  as,  for  example,  the  Latin-American 
countries,  where  social  needs  are  not  everywhere  iden- 
tical and  consequently  require  a  regulation  appropriate 
to  the  region.  Especially  is  this  so  of  the  regulation 
of  water  rights,  of  rural  servitudes,  and  even  of  rights 
in  land  in  general.  Not  only  should  laws  be  enacted 
for  determinate  localities  or  exempting  certain  regions, 
but  also  the  local  courts  should  be  allowed  to  adopt 
certain  measures,  within  limits  fixed  beforehand,  in  the 
interests  of  the  district  where  they  are  situated. 

Next,  equality  of  all  before  the  law  can  no  longer 
be  maintained  as  a  principle,  at  least  .in  the  old  absolute 
manner.  This  reform  has  already  been  accomplished  in 
part,  and  it  has  gained  more  ground  than  the  last, 
especially  in  the.  field  of  labor  legislation.58 

§  9.  Governing  Ideas  of  Future  Codification.  Those 
who  would  reform  existing  codes  look  only  at  the  problem 
of  the  code's  contents.  Three  groups  of  theories  exist  upon 
the  subject,  founded  ordinarily  upon  economic  and  social 
considerations,  susceptible  of  many  shades  of  difference 
according  to  the  individuality  expounding  them. 

as  A  proposal  to  codify  private  international  law  was  presented  to  the 
Second  Pan-American  Conference,  which  met  in  the  City  of  Mexico 
in  1901-02.  The  author  was  Secretary  of  the  Committee  on  Inter- 
national Law,  and  in  that  capacity  drew  up  its  report.  He  there  set 
forth  some  of  the  ideas  expressed  in  this  section  upon  the  principles  which 
should  underlie  codification.  The  Conference  approved  the  scheme  of 
codification  proposed.  Cf.  "Actes  et  documents  de  la  deuxieme  Con- 
ference pan-americaine"  (Mexico,  1902),  pp.  302-307. 


§9]  THE  CONTENTS  OF  CODES  481 

1.  The  socialist  would  revolutionize  all  legal  rela- 
tionships by  a   profound   change   in   the  organization 
of  the  family  and  by  suppressing  the  rights  of  property 
and  of  inheritance.      A    less    radical    tendency  within 
the  same  school  is  represented  by  Menger's  attack  on 
the  first  draft  of  the  German  Civil  Code.     His  criticism 
is  indeed  merited;  but  in  part  it  is  exaggerated  —  its 
objective  is  nothing  less  than  to  create  privileges  in  favor  of 
the  working  class.59     Another  numerous  contingent  de- 
mand various  specific  social  reforms  which  they  consider, 
according  to  their  particular  temperament,  necessary  to 
meet  the  requirements  of  present  society.     In  this  contin- 
gent must  be  especially  mentioned  the  Italian  School.60  , 

2.  The  Italian  School  has  attracted  a  large  following. 
It  proposes  to  reform  the  Code  in  line  with  the  results 
of  positive  science,  excluding  everything  metaphysical. 
The  legislator  is  to  study  the  evolution  of  law,  by  refer- 
ence to  the  findings  of  anthropology  and  the  social  sciences, 
which  are  to  instruct  him  upon  the  laws  governing  juridi- 
cal phenomena.     He  must  also  have  an  accurate  notion  of 
the  needs  of  society.     Not  until  all  these  elements  are 
brought  together,  declares  this  school,  can  there  be  pro- 
duced what  it  terms  a  "Social  Code  of  Private  Law." 

The  method  is  too  vague;  the  reforms  advocated  are 
either  unacceptable,  or  else  so  obvious  that  there  is  no 
longer  any  call  to  argue  them.61 

M  Menger,  "Le  droit  au  prcxfuit  integral  du  travail";  "Du  Role  social 
de  la  science  du  droit"  in  "Revue  d'Economie  Politique"  (1896),  pp.  62- 
86;  and  "L'Etat  socialiste"  (French  trans,  by  Milhaud,  Paris,  1904). 
For  criticism  of  the  doctrines  of  Menger,  cf.  Nani,  "Le  Socialisme  dans 
le  Code  civil"  (Turin,  1892). 

«°  Gianturco,  "L'Individualisme  et  le  socialisme  dans  le  droit  con- 
tractuel";  Salvioli,  "LesDefauts  sociaux  du  Code  civil";  Polacco,  "Fonc- 
tions  sociales  de  la  legislation  civile  moderne";  "Posada,  "Le  Droit  et  la 
question  sociale,"  in  "Revue  Internationale  de  Sociologie,"  vol.  vi, 
pp.  225-250.  [Posada  is  a  Spanish  jurist.] 

"  Upon  this  School  and  its  reforms,  cf.  Cimbali,  "L'Etude  du  droit 
civil  dans  les  Etats  modernes"  (1881),  especially  pt.  i,  chaps,  ii,  iii.  iv. 


482       ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

3.  A  last  school  would  base  future  legislation  upon 
the  t>ne  principle  of  solidarity,  which  is  to  dominate 
private  law,  because  it  is  the  foundation  of  the  whole 
social  organism.  The  idea  is  now  old.  It  was  clearly 
formulated  by  the  socialists  and  philosophers  of  the 
first  half  of  the  1800s,  especially  by  Fourier  and  his 
school,  who  regarded  solidarity  as  a  "law  of  nature." 
The  principle  has  spread  far  and  wide  to-day,  thanks 
to  our  progress  in  moral  ideas,  which  tend  to  make  the 
general  prevail  over  the  personal  consideration.  But 
while  we  are  more  and  more  agreed  that  the  law  should 
be  imbued  with  the  idea  of  solidarity,  this  idea  remains 
as  yet  vague,  and  no  one  has  yet  clearly  shown  in  what 
sense  it  is  to  guide  the  lawmaker.  Some  demand  reform 
without  claiming  affiliation  with  any  school.62  Many 
limit  their  demands  to  the  fusion  of  the  civil  and  com- 
mercial codes,  on  the  ground  that  the  privilege  of  a 
special  law  for  merchants  should  be  abolished.  They 
cite  as  precedent  of  such  fusion  the  Swiss  uniform  Code 
of  Obligations,  which  governs  all  classes  of  persons 
without  distinction  of  any  sort. 

1:  REFORMS  INTRODUCED  BY  THE  GERMAN  CIVIL 
CODE.  Turning  now  from  theoretic  proposals  to  realities, 
let  us  examine  the  governing  ideas  that  have  entered  into 
modern  codes,  especially  into  the  German  Civil  Code. 

and  pt.  iii;  D'Aguanno,  "La  Reforme  integrate  de  la  legislation  civile," 
especially  chaps,  ii,  iv;  "Genese  et  evolution  du  droit  civil"  (Spanish 
ed.),  chaps,  iv,  viii,  xii,  xvi,  xx;  Cogliolo,  "La  theorie  de  1'evolution 
darwiniste  dans  le  droit  prive." 

In  the  Second  Congress  of  Criminal  Anthropology,  the  following 
subject  was  proposed  (question  xii):  "Anthropology  in  its  application 
to  legislation  and  to  questions  of  civil  law."  Fioretti,  reporting  upon  the 
question,  expressly  admitted  that  the  application  of  anthropology  to 
civil  law  was  almost  impossible;  cf.  "Actes  du  deuxigme  Congres  inter- 
national d'anthropologie  criminelle"  (Lyon,  1890). 

"Batbie,  a  series  of  articles  under  title  "Revision  du  code  Napoleon," 
contributed  to  "Revue  critique  de  legislation  et  de  jurisprudence," 
vol.  xxviii,  pp.  125-162,  308-364;  vol.  xxix,  pp.  116-167;  and  vol.  xxx, 
pp.  50-64,  128-148,  213-231,  322-346,  and  402-436. 


§9]  THE  GERMAN  CODE  483 

This  Code  did  not  follow  any  one  of  the  systems  to 
which  we  referred.  Nevertheless,  it  marks  a  reaction 
against  that  twofold  individualism  which  is  the  back- 
bone of  all  other  codes.  In  the  first  place,  it  repudiates 
the  individualism  which  always  regards  the  human  being 
as  isolated.  It  devotes  a  large  section  to  artificial 
persons63;  their  regulation  is  made  to  hang  upon 
the  formation  of  a  common  fund  or  capital,  and  is 
governed  by  the  idea  of  the  solidarity  of  the  group. 
Furthermore,  it  also  breached  the  old  individualism 
by  adopting  two  out  of  the  four  legal  manifestations 
of  solidarity.  It  does  not,  indeed,  establish  the  prin- 
ciple of  mutual  assistance,  though  it  does  touch  upon 
it  in  the  law  of  master  and  servant ;  nor  does  it  extend 
liability  beyond  the  presence  of  actual  culpability.  In 
this  respect  the  Code  marks  no  progress;  it  has  held 
to  the  traditional  system  of  subjective  culpability  and 
has  not  ventured  to  establish  that  of  objective  social 
risk. 

Yet  it  does  recognize  the  other  two  manifestations  of 
solidarity  to  a  notable  degree.  Its  regulations  have 
considered  social  interest  above  the  interest  of  isolated 
beings ;  notably  it  has  adopted  the  maxim  of  the  "misuse 
of  rights"  ("sic  utere  tuo  ut  alienum  non  laedas").  The 
Code  devotes  an  entire  section  to  the  limitations  on 
the  exercise  of  rights,  to  self-defense  and  self-help.64 
It  accepts  the  theory  of  the  misuse  of  rights,65  according 
to  which  "That  exercise  of  a  right  which  can  only  have 
the  purpose  of  causing  injury  to  another  is  unlawful." 
By  this  the  judge  may  consider  void  and  illegal  every 
exercise  of  a  right  which  transcends  the  limits  set  by 
good  morals,  equity,  and  an  understanding  of  social 

•»  Book  I,  title  ii,  arts.  21-90. 

64  Book  I  (General  Principles),  sec.  vi. 

«*  Art.  226. 


484      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

relations.66     In    several    instances    and    under    certain 
specified  conditions  he  may  modify  a  contract. 

Lastly,  to  prevent  the  abuse  of  paternal  and  marital 
authority  in  the  exercise  of  its  rights  or  obligations,  the 
Code  creates  an  extended  control  over  the  family  by  the 
courts,  a  sort  of  supreme  guardianship  by  the  State 
over  family  matters,  exercised  by  a  judicial  officer. 

From  all  these  innovations,  the  result  is  that  the 
autonomy  of  the  will  has  a  very  different  r61e  in  the 
German  Civil  Code  from  that  in  the  French  Code  and 
in  other  codes  based  frankly  upon  individualistic  prin- 
ciples. The  German  Civil  Code  does  indeed  give  a 
large  place  to  the  autonomy  of  the  will;  but  that  does 
not  mean,  as  in  the  system  of  the  other  codes,  that  it 
always  prevails,  even  when  in  conflict  with  the  law. 
Most  of  the  rules  of  the  German  Code,  while  not  abso- 
lutely imperative,  do  not  pretend  for  a  moment  to  repre- 
sent the  intention  of  the  parties,  but  to  establish  the 
supremacy  of  the  will  of  the  law.  Agreements  between 
individuals  are  made  to  produce  the  legal  consequences 
which  most  conform  to  the  policy  which  the  law  should 
follow,  that  is  to  say,  those  dictated  by  the  require- 
ments of  equity  and  social  justice.  These  consequences, 
it  is  true,  may  be  set  aside  by  common  consent;  but 
such  a  derogation  must  be  clear  and  formal,  otherwise 
the  presumption  rests  with  the  rule  of  the  law.67 

The  German  Code,  furthermore,  looks  to  the  indi- 
vidual to  execute  the  law  whenever  the  purpose  of  his 
act  is  expressly  the  exercise  of  a  right  within  those  fixed 
limits  left  open  to  his  judgment.  The  individual  is 
thus  clothed  with  a  jurisdiction  which  may  be  considered 

86  Saleilles,  "Introduction  a  1'etude  du  droit  civil  allemand,"  no.  xi, 
and  "Introduction"  to  French  trans,  of  the  German  Civil  Code,  no.  xviii; 
ibid.,  notes  to  arts.  226-231,  vol.  i,  pp.  334-349. 

•7  Saleilles,  "Introduction  a  1'etude  du  droit  civil  allemand,"  no.  vi, 
especially  pp.  44,  45,  51. 


§9]  THE  GERMAN  CODE  485 

a  discretionary  power.  But  at  the  same  time  the 
German  Code,  in  order  to  make  clear  that  this  function 
is  conferred  by  law  and  not  a  subjective  right,  mul- 
tiplies considerably  those  express  and  implied  instances 
where  the  judge  enjoys  a  discretionary  power,  allowing 
him  to  give  each  case  an  appropriate  decision,  and  excus- 
ing him  from  applying  a  rule  whose  rigid  universality 
would  otherwise  be  imposed  upon  him. 

2:  LIMITATIONS  OF  THE  GERMAN  CODE.  The  Ger- 
man Civil  Code  accepted  the  idea  of  solidarity  in  law. 
But  it  did  not  penetrate  deep ;  it  established  it  in  two 
aspects,  but  discarded  it  in  two  others. 

While  the  Code  may  be  criticized  for  this,  it  should  not 
be  blamed  for  not  having  ventured  along  social  lines 
farther  than  it  did.  We  must  not  forget  that  the  present 
period  is  one  of  crisis  and  transition,  when  economic 
evolution  is  moving  forward  and  is  profoundly  changing 
in  consequence  our  social  and  juridical  organization. 
It  is  not  possible  at  such  a  moment  to  produce  satis- 
factory legislation;  the  way  for  the  transition  must  be 
prepared;  radical  and  conservative  opinion  must  be 
reconciled.  The  German  Code  necessarily  felt,  with 
respect  to  the  clearness  and  breadth  of  its  governing 
ideas,  the  influence  of  the  social  conditions  of  the  period 
of  transition  when  it  appeared.  It  was  a  very  different 
age  from  that  of  the  French  Code,  which  was  one  par- 
ticularly favorable  to  clear-cut  codification. 

Though  the  new  German  Code  left  much  to  be  desired 
in  not  fully  accepting  the  principle  of  solidarity  in  law, 
the  same  may  not  be  said  of  the  specific  institutions 
which  it  regulated,  particularly  those  affected  by  the 
law  of  property.  The  reforms  in  this  field  conform  to 
modern  economic  and  social  conditions.  Everything 
relating  to  obligations,68  to  rights  in  things,  especially 

««  Book  II. 


486       ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

to  possession,  the  manner  of  acquiring  property,  and  of 
rights  over  the  property  of  others,69  is  dealt  with  in 
accord  with  the  new  needs  of  society.  This  is  also  true 
of  the  law  of  the  family,70  and  of  inheritance.71 

Yet  it  must  be  admitted  that  in  many  instances  an 
excess  of  logic  has  led  the  German  legislator  to  decide 
questions  in  ways  that  cannot  be  justified  upon  any 
other  grounds,  and  that  in  other  instances  he  has  not 
yet  dared  to  break  definitely  with  the  traditional  theories 
founded  upon  the  Roman  law.72 

§  10.  Origin  of  the  Changes  in  Underlying  Principles 
and  Governing  Ideas.  The  underlying  principles  and 
governing  ideas  which  we  have  advocated  are  not 
derived,  let  it  be  noted,  from  theories  and  speculations 
which  are  more  or  less  metaphysical,  but  from  an  obser- 
vation of  the  political  and  economic  conditions  of  present 
society  and  of  the  trend  imparted  by  them  to  modern 
legislation.  The  chief  result  of  our  observation  which 
we  would  particularly  emphasize  is  that,  as  social  con- 
ditions are  no  longer  what  they  were  at  the  time  of  the 
adoption  of  the  French  Code,  the  underlying  principles 
and  governing  ideas  of  future  codification  must  be  very 
different. 

In  1804  things  were  favorable  to  codification.  Social 
conditions  were  sharply  outlined  because  the  new  polit- 
ical organization  was  strong  and  the  industrial  revolu- 
tion had  not  yet  begun.  It  was  merely  a  question  of 
reconciling  two  systems  of  law  until  then  coexisting, 
and  of  attuning  them  to  the  new  political  and  social 
order.  At  that  time  the  legislator  did  not  need  to  con- 

»  Book  III. 

'o  Book  IV. 

7»  Book  V.  Cf.  Saleilles,  "Introduction"  to  the  French  trans,  of  the 
German  Civil  Code,  nos.  xix-xxiii;  and  "La  Theorie  possessoire  du 
Code  Civil  allemand,"  from  "Revue  Critique  de  Legislation  et  de  Juris- 
prudence" (Paris.  1904). 

** Saleilles,  "Introduction  a  1'etude  du  droit  civil  allemand,"  p.  119. 


§10]  SOCIAL  CHANGE  487 

cern  himself  how,  in  the  future,  law  was  to  be  made 
to  accord  with  social  requirements.  His  aim  was 
to  solidify  the  then  new  social  order  by  unifying  and 
simplifying  the  law,  and  so  he  disregarded  the  evolution- 
ary life  of  law.  He  drafted  the  Code,  therefore,  upon 
such  bases  as  would  unify  and  simplify  the  law  and 
render  it  clear  and  precise.  His  governing  ideas  were 
drawn  from  the  new  political  order,  which  breathed 
individualism.  Reasoning  according  to  these  principles, 
interpretation  has  maintained  that  its  entire  function 
is  merely  to  search  for  legislative  intention,  and  it  has 
applied  to  modern  problems  the  same  master-concep- 
tions that  entered  into  the  Code.  It  imagined  that  the 
new  problems  were  identical  in  essence  with  the  old  ones 
anticipated  by  the  Code ;  whereas  the  truth  is  that  had 
the  legislator  a  century  ago  foreseen  these  problems  he 
would  have  regulated  them  along  wholly  different  lines. 

Social  conditions  are  very  different  to-day  from  those 
of  1804,  when  the  Code  was  adopted.  Far  from  living 
amid  social  conditions  that  are  well  denned,  our  epoch 
is  openly  evolutionary;  our  regime  of  individualism 
is  vanishing,  and  to  it  succeeds  a  new  social  order  whose 
scope  it  is  impossible  to  know  —  socialism.  The  labor 
of  the  legislator  to-day  is,  therefore,  very  different  from 
what  it  was  when  the  1800s  began.  The  problem  is 
no  longer  one  of  strengthening  a  social  order  and  of 
unifying  and  fortifying  the  laws.  Nor  should  we  be 
oblivious  to  the  fact  that  the  hastening  evolution  of  the 
law  will  eventually  transform  the  present  order  into 
something  quite  different.  Indeed,  this  evolution  must 
serve  as  a  starting  point  for  the  new  regime,  which  must 
follow  it;  codification  must  set  out  from  this  point 
toward  a  new  goal. 

With  the  change  in  the  underlying  principles  and 
governing  ideas  of  codification  must  come  a  corresponding 


488      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

transformation  in  legal  interpretation.  In  facing  new 
problems  the  interpretation  must  not  seek,  as  formerly, 
to  determine  the  intention  of  the  legislator,  irrespective 
of  the  nature  of  the  problem,  but  to  keep  adjusting 
the  law  to  new  juridical  relationships,  so  that  it  con- 
forms to  the  nature  which  social  changes  impart  to  them. 
We  have  already  expressed  our  conclusions  as  to  what  the 
underlying  principles  of  the  new  codification  should  be 
to  attain  its  purpose,  and  also  as  to  the  elements  to  be 
considered  in  interpretation  in  order  that  it  accomplish 
its  new  function.  We  said,  too,  that  the  German  legis- 
lator had  not  appeared  in  an  altogether  modern  role  in 
this  respect,  and  that  France  ought  not  to  imitate  her 
neighbor  in  a  future  revision  of  the  Code. 

In  weighing  the  governing  ideas  which  are  to  enter 
into  the  new  code,  we  must  be  careful,  considering  the 
character  of  the  period  with  which  we  are  engaged,  not 
to  push  any  one  to  exaggeration. 

And  yet  the  idea  of  solidarity,  which  has  become  so 
manifest  in  the  changes  wrought  in  society,  must  be 
developed  further  than  in  the  German  Code.  Soli- 
darity should  be  accepted  not  only  in  the  two  phases 
admitted  in  that  Code,  but  also  in  the  idea  of  reciprocal 
aid,  especially  between  master  and  servant,  between 
members  of  the  same  association  and  in  general  between 
persons  bound  by  similar  interests;  as  well,  too,  in  those 
other  phases  seen  in  the  extension  of  liability  beyond  the 
case  of  actual  culpability.  Briefly,  wherever  possible, 
right  should  be  tempered  by  duty. 

The  idea  of  general  interest  or  group  interests  — 
wherever  a  law  aims  to  benefit  a  definite  group  —  must 
be  given  even  greater  prominence  than  in  the  German 
Code,  for  such  interest  must  predominate  over  that  of 
the  individual  considered  as  a  unit.  The  group  interest 
will  not  be  hard  to  determine,  since  it  will  be  represented 


§10]  SOCIAL  CHANGE  489 

by  different  organizations  created  for  the  very  purpose 
of  defending  it.  The  general  interest,  while  at  times 
difficult  to  ascertain,  can  in  most  cases  be  exactly  deter- 
mined, especially  in  agrarian  and  industrial  matters. 

Such  are  the  ideas  which,  so  far  as  possible,  should 
become  the  soul  of  the  new  codification,  giving  it  new 
life,  filling  its  deficiencies,  and  unifying  it.  And  further- 
more, only  in  this  way  may  we  possess  legal  institutions 
which  correspond  to  the  democratic  spirit  of  our  age. 

As  to  the  introduction  of  new  legal  rules  and  their 
application  to  practical  needs,  the  Code  and  special  laws 
of  Germany  furnish  the  necessary  material  as  examples 
to  accomplish  the  task  successfully. 

§  11.  Method  of  Revision.  The  problem  how  to  draft 
modern  laws,  especially  the  codes,  has  deeply  interested 
legislators  and  statesmen. 

Theories  and  examples  abound.  Among  the  theories, 
we  find  several  jurists  in  France  proposing  to  associate 
the  Council  of  State  in  the  labor  of  drafting,  in  order  to 
remedy  the  disadvantages  attending  this  work  in  legis- 
lative assemblies.73 

Bertrand,74  who  is  an  advocate  of  a  total  revision  of 
legislation,  avowedly  readopts  Rossi's  old  idea  of  draft- 
ing. According  to  him,  parliament  should  lay  down 
the  bases  of  the  revision,  and  then  turn  over  to  the  execu- 
tive the  preparation  of  the  draft.  The  actual  work  of 
drafting  would  be  done  by  a  commission  named  by  the 
executive.  Its  draft  would  be  submitted  to  the  scrutiny 
of  a  legislative  committee,  and  would  be  discussed  in 

«  Varagnac,  "Le  Conseil  d'Etat  et  les  projets  de  reformes,"  in  "Revue 
des  Deux-Mondes"  (Sept.  15,  1892);  Tarbouriech,  "Du  Conseil  d'Etat 
comme  organe  legislatif,"  in  "Revue  du  Droit  Public  et  de  la  Science 
Politique"  (1894),  vol.  ii,  pp.  272-285;  Michon,  "L'Initiative  parlemen- 
taire  et  la  reforme  du  travail  legislatif"  (Paris,  1898);  Charles  Benoist, 
"La  Reforme  parlementaire"  (Paris,  1902),  Introduction,  pp.  xvi  and 
xxx  vii. 

'«  Attorney  for  the  State  before  the  Court  of  Cassation. 


490      ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

open  sessions  by  its  authors  and  the  members  of  the 
latter  committee.75 

Roguin  proposes  the  creation  of  a  special  commission, 
upon  whom  would  fall  the  right  and  duty  of  preparing 
and  placing  the  necessary  legislative  reforms  before  the 
legislature,  which  alone  would  have  the  right  to  vote 
them.  Such  a  commission  would  be,  in  his  opinion, 
either  a  body  like  the  French  Council  of  State,  or, 
preferably,  an  executive  council  deriving  its  authority 
from  the  national  constitution.  Its  function  would  be 
to  investigate  and  to  draft  laws  which  the  legislature 
would  later  vote.  He  also  proposes  the  formation  of 
permanent  commissions,  having  similar  functions,  com- 
posed of  members  of  the  two  legislative  chambers;  or 
permanent  commissions  of  an  extra-parliamentary  nature. 
These  would  begin  by  laying  before  parliament  the 
governing  ideas  which  were  to  enter  into  future  legisla- 
tion. Parliament  would  voice  its  opinion  upon  these 
and  then  would  follow  the  real  work  of  formulating 
rules  in  detail.  This  task  would  be  confided  to  the 
proper  commission  and  would  be  carried  out  in  accord 
with  the  ideas  approved  by  parliament.76 

1:  METHOD  OF  DRAFTING  THE  SPANISH  AND  GER- 
MAN CIVIL  CODES.  Leaving  theory  to  examine  actual 
examples  of  drafting,  we  find  that  everywhere  to-day 
laws  are  prepared  very  differently  from  formerly. 
Especially  do  we  see  that  laws  of  a  sociological  character 
are  rarely  drawn  up  within  a  parliament  itself;  they 
are  prepared  in  advance  by  bodies  of  lawyers  or  skilled 
persons  who  submit  them  to  the  legislature.  Before 
developing  their  subject  these  bodies  investigate  the 
facts  and  the  nature  of  the  rules  involved,  and  also 

v-Bertrand,  "De  la  codification,"  an  address  made  before  the  Court 
of  Cassation  at  its  opening  session  (Paris,  1888),  pp.  30—31. 

76  Roguin,  "Observations  sur  la  codification  des  lois  civiles,"  pp.  100- 
104. 


§11]  THE  DRAFTING  OF  CODES  491 

the  legislation  of  a  similar  kind  in  other  countries ;  they 
also  give  a  hearing  to  the  persons  whose  interests  are 
affected  by  the  proposed  law. 

(a)  One  method  of  codification  is  that  of  the  Civil 
Code  of  Spain.  The  Cortes  ordered,  May  11,  1888,  that 
a  Code  should  be  drawn  up  by  the  "Commission  on 
Codification,"  especially  the  section  on  civil  law,  and 
that  this  Commission  should  take,  as  its  material  to 
work  from,  the  draft  prepared  in  1851,  the  data 
of  comparative  law,  and  the  twenty-eight  bases 
which  the  legislature  in  the  Act  of  1888  had  itself 
laid  down.  When  the  draft  was  completed,  it  was 
presented  to  the  legislature  and  was  accepted  with 
certain  modifications.  The  system  of  the  Spanish  Code 
is  thus  seen  to  be  nearly  that  which  was  once  proposed 
by  Rossi  and  taken  up  again  in  1888  by  Bertrand. 

(6)  The  German  Civil  Code  was  drafted  on  another 
method.  The  Bundesrat  named  a  Preliminary  Com- 
mission, composed  of  five  members,  charged  with  dis- 
posing of  certain  preliminary  problems.  Primarily, 
there  was  the  problem  of  the  arrangement  of  the  material 
and  the  scope  of  the  future  Code,  inasmuch  as  certain 
matters  had  to  be  reserved  for  local  (provincial)  law; 
then,  too,  there  was  the  problem  of  the  method  to  be 
followed  in  the  preparation  of  a  work  of  this  kind. 

The  draft  itself  of  the  Code  was  prepared  by  a  First 
Commission  charged  with  reducing  it  to  concrete  form. 
However,  for  each  of  the  principal  parts  of  the  draft 
one  member  was  named  as  draftsman  to  report  on  the 
subject,  whose  text  should  serve  as  a  basis  for  discussion 
by  the  Commission  as  a  whole.  The  Bundesrat 
appointed  twelve  members  to  serve  upon  this  Commission, 
all  of  them  officials  or  professors.  Those  especially 
named  to  report  upon  designated  subjects  devoted  seven 
years  to  the  task.  After  this  the  united  work  of  the 


492       ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

Commission  began  and  lasted  six  years.  The  draft 
was  submitted  to  the  Imperial  Chancellor  and  then 
transmitted  to  the  Bundesrat,  which  ordered  its  official 
publication  in  order  to  give  it  the  widest  possible  pub- 
licity and  to  make  it  the  object  of  study  and  criticism. 
In  this  way  the  draft  came  to  be  known,  examined, 
discussed,  and  criticized  by  the  scientific  and  business 
worlds,  and  their  criticism  facilitated  the  work  of  the 
legislature. 

The  Bundesrat  then  named  a  new  Commission  which 
it  charged  with  the  preparation  of  a  second  draft. 
This  Commission  was  composed  of  twenty-two  members, 
chosen  not  only  from  those  learned  in  the  law  but  also, 
and  in  greater  part,  from  amongst  the  representatives 
of  the  great  interests  of  the  country,  especially  land- 
holders and  leaders  of  industry  and  commerce.  To 
it  were  added  a  certain  number  of  auxiliary  members. 
The  new  Commission  adopted  as  a  basis  of  discussion 
the  first  draft,  and  the  different  parts  of  the  new  Code 
were  made  public  so  soon  as  each  was  drawn  up.  In 
this  way  it  was  possible  to  give  ear  to  criticism  before 
the  completion  of  the  final  draft.  The  Commission,  in 
fact,  undertook  a  complete  revision  of  the  first  draft, 
and  in  this  way  a  second  revised  text  resulted. 

The  revision  was  then  placed  before  the  Bundesrat 
through  the  Imperial  Chancellor.  This  body  reported 
it  to  its  Judiciary  Committee,  which  was  directed  to 
examine  it  and  modify  it  where  necessary.  The  Com- 
mittee made  several  modifications  and  returned  it  to 
the  Bundesrat,  which  thus  had  before  it,  as  a  final 
text,  the  draft  of  the  Second  Commission  as  modified 
by  the  Judiciary  Committee.  The  draft  was  sent  up 
by  the  Imperial  Chancellor  to  the  Reichstag,  which,  after 
some  debate  over  the  method  to  be  followed  in  its  dis- 
cussions, appointed  a  Committee  representing  all  political 


§11]  THE  DRAFTING  OF  CODES  493 

parties.  By  this  Committee  were  made  the  few  reforms 
of  a  legal  nature  which  originated  in  the  Reichstag.  In 
committee  of  the  whole  all  political  parties  held  to  the 
principles  which  had  been  discussed  and  adopted  by 
their  delegates  in  committee.  The  discussion  in  com- 
mittee of  the  whole  was  merely  upon  certain  broad 
questions  of  a  social  and  religious  character.  Thus 
approved,  the  draft  was  reported  back  to  the  Bundesrat, 
which  in  turn  gave  it  its  sanction.77 

2:  CONCLUSIONS.  From  a  study  of  the  evolution 
of  legal  institutions,  and  of  the  examples  of  legislation 
to  which  we  have  just  referred,  certain  conclusions  may 
be  drawn  as  to  the  best  method  to  pursue  in  future 
codification. 

First,  a  preliminary  commission  should  study  at  leisure 
the  underlying  principles  upon  which  the  codification 
is  to  rest.  A  permanent  commission  on  codification 
may  then  be  created,  which  will  be  divided  into  sections 
corresponding  either  to  the  usual  divisions  of  the  law, 
or  to  the  specific  institutions,  according  as  one  or  the 
other  basis  is  adopted  .for  carrying  out  the  codification. 
This  commission  should  be  composed  of  jurists  and 
technical  men  interested  in  the  particular  subject  to 
be  codified.  If  the  sections  of  the  commission  are 
constituted  according  to  specific  institutions  —  as  we 
believe  they  should  be  —  every  interest  falling  within 
the  program  of  a  particular  section  should  be  represented 
there. 

The  sections  should  thoroughly  investigate,  each 
within  its  own  sphere,  the  defects  and  deficiencies  of 
the  existing  system,  duly  considering  their  gravity,  and 
giving  ear  to  the  results  of  the  various  relevant  sciences. 

77  For  greater  detail,  cf.  Saleilles,  "Introduction  a  1'etude  du  droit 
civil  allemand,"  no.  iii;  and  "Introduction"  to  the  French  trans,  of  the 
German  Civil  Code,  nos.  ix-xvi. 


494       ALVAREZ:   METHODS  FOR  CODES  [Cn.XI 

They  should  investigate  how  the  problem  has  been 
met  in  other  countries,  and  what  obstacles  there  are 
to  the  introduction  of  a  type  or  types  of  legal  institu- 
tions existing  elsewhere.  They  should  hear  the  opinion 
upon  the  proposed  reforms  of  those  particular  groups 
of  society  whose  peculiar  interests  cause  them  to  work 
for  or  against  it,  and  upon  the  direction  which  the  reform 
should  take.  Lastly,  they  should  define  to  what  point 
the  institutions  should  be  regulated  by  the  legislature 
and  what  matters  are  proper  to  be  left  to  the  regulation 
of  the  courts  or  of  the  groups  interested.  Sometimes  it 
is  a  simple  matter  to  procure  all  this  information,78 
particularly  in  matters  relating  to  sociological  questions, 
because  in  almost  all  countries  there  exists,  within  some 

7 s  As  an  example:  the  author  presented  to  the  First  Latin-American 
Medical  Congress,  which  met  at  Santiago,  Chile,  in  1901,  a  paper  upon 
"Mental  Incapacity  in  Medical  Jurisprudence  and  in  Comparative 
Legislation."  He  there  indicated  the  reforms  which  he  believed  neces- 
sary in  Chilian  law  to  place  it  abreast  of  medical  and  economic  science 
and  to  give  it  the  benefit  of  the  work  that  has  been  done  in  comparative 
legislation.  The  reforms  proposed  were :  1.  The  word  lunacy  ("demen- 
cia"),  the  pathological  sense  of  which  is  restricted,  should  be  replaced 
in  the  Civil  Code,  Book  I,  title  xix,  by  the  words  "mental  derangement," 
which  are  more  general.  2.  Legal  incapacity  to  act  by  reason  of  mental 
incapacity  should  be  adjudged  not  only  for  those  whose  mentality  is 
entirely  deranged,  but  also  for  those  whose  faculties  have  been  only 
sufficiently  disturbed  to  render  them  incapable  of  caring  for  their  prop- 
erty. 3.  The  provisions  of  the  Law  of  1856,  similar  to  those  of  the  French 
Act  of  1832  relating  to  lunatics  in  institutions,  should  be  incorporated 
in  the  Code.  4.  The  incapacity  of  the  insane  ought  to  be  relative,  not 
absolute.  This  would  permit  them  alone,  or  their  heirs,  to  plead  the 
invalidity  of  their  acts;  it  would  give  them  the  right  to  ratify  their  acts; 
and  it  would  also  render  their  acts  unassailable  after  the  lapse  of  the 
prescriptive  period.  5.  The  deaf  and  mute  who  is  not  insane,  even 
though  he  cannot  make  himself  understood  by  writing,  ought  not  to  be 
incapacitated  by  effect  of  law.  6.  The  incapacity  of  the  spendthrift 
should  be  relative  and  limited  to  acts  of  alienation  of  his  property;  he 
should  retain  full  capacity  for  acts  of  management.  7.  The  feeble- 
minded ought  to  be  assimilated  to  the  spendthrift,  as  also  confirmed 
drunkards  and  victims  of  alcoholism.  8.  Individuals  who  are  incapaci- 
tated by  reason  of  illness  from  caring  for  their  property  ought  to  be  placed 
under  a  guardian  with  respect  to  their  property,  upon  their  request. 
Such  a  guardianship  of  their  property  would  not  cause  them  to  lose  their 
civil  capacity  but  they  could  perform  no  act  of  management  or  of  aliena- 
tion without  their  guardian  joining. 


§11]  THE  DRAFTING  OF  CODES  495 

department  of  the  Government,  a  permanent  bureau 
whose  function  is  investigation,  especially  of  matters 
relating  to  labor,  and  which  reports  its  findings  to  the 
Government. 

After  these  investigations  have  been  concluded  the 
law  should  be  drafted,  and  it  should  be  given  wide 
publicity  in  order  to  subject  it  to  criticism  from  various 
sources.  After  a  certain  period  has  elapsed  since  pub- 
lication, the  draft,  revised  or  not  by  the  sections  respon- 
sible for  it,  should  be  presented  to  the  legislature,  where 
it  will  be  discussed  by  a  committee  representing  all 
parties.  The  legislature  should  be  limited  to  approving 
or  disapproving  the  work  as  a  whole. 

After  the  draft  has  become  the  code,  or  one  of  the 
future  codes,  by  virtue  of  legislative  approval,  the  same 
commission  would  continue  its  investigations;  and  at 
certain  intervals,  every  five  or  ten  years  for  example,  it 
would  prepare  a  report  and  a  draft  upon  the  new  legal 
principles  which  the  legislature  should  sanction,  and 
upon  those  principles  which  should  continue  to  form 
part  of  the  regulation  falling  within  the  authority  of  the 
courts  and  of  determined  economic  groups. 

3:  CONGRESS  OF  LATIN  COUNTRIES  ON  COMPARA- 
TIVE LEGISLATION.  We  have  concluded  our  investi- 
gation of  the  underlying  principles  and  governing  ideas 
which  we  believe  should  control  the  new  codification, 
as  also  indeed  the  method  of  accomplishing  it. 

To  France,  we  think,  it  falls  to  complete  a  work  which 
the  German  Civil  Code  but  partly  realized.  Thus 
will  she  continue  during  this  century  the  influence 
which  she  exercised  upon  codification  during  the  past. 
But  this  result  can  only  be  obtained  by  the  rise  of  a 
scientific  movement  in  France,  of  such  a  character 
as  will  render  it  peculiarly  efficient.  The  "Societe 
d'Enseignement  Sup6rieur,"  the  "Societe  d'Etudes 


496       ALVAREZ:    METHODS  FOR  CODES  [Cn.XI 

Legislatives,"  and  the  "Soci6te  de  Legislation  Com- 
paree"  should  invite  all  Latin  countries  to  send  repre- 
sentatives to  a  congress.  That  the  idea  is  feasible  is 
shown  by  the  fact  that  South  American  countries  have 
already  convened  several  times,  and  it  should  not  be 
difficult  for  the  Latin  countries  of  Europe  to  do  so. 
At  this  congress  representatives  of  each  country  would 
report  upon  the  legal  institutions  which  their  own  law 
had  borrowed  from  France,  wherever  the  results  had 
not  been  wholly  satisfactory.  The  reasons  of  the  failure 
would  be  given,  native  institutions  would  be  explained, 
and  the  reasons  leading  to  their  adoption,  as  also  the 
results  obtained.  The  preparation  and  discussion  of 
each  report  would  form  the  best  work  on  the  comparative 
law  of  Latin  countries.  This  alone  would  justify  the 
congress.  Such  a  work  would  necessarily  take  the  form 
of  a  compilation;  it  could  not  originate  from  a  single 
jurist,  as  is  usually  imagined. 

Law  as  a  science  would  not  be  alone  in  profiting  by  the 
work  of  such  a  congress;  the  world  of  affairs  would  also 
share.  It  would  be  quite  possible  to  come  to  agreement 
over  the  general  principles  of  a  uniform  legislation  for  all 
Latin  countries.  Harmony  would  be  relatively  easily 
obtained.  The  political,  economic,  and  social  conditions 
of  the  countries  are  so  broadly  alike  as  to  permit  of  their 
bending  to  such  a  uniformity.  If  agreement  on  every 
point  is  not  possible,  at  least  an  understanding  could  be 
reached  to  lessen  or  do  away  entirely  with  those  legis- 
lative differences  due  merely  to  accident,  or  to  formulate 
uniform  rules  of  private  international  law.  The  find- 
ings and  resolutions  of  such  a  congress,  with  all  the  pre- 
paratory work,  would  be  a  fruitful  source  of  information 
to  the  courts  of  Latin  countries,  pointing  out  the  direc- 
tion which  the  transformation  of  institutions  was  taking 
and  how  the  changes  might  be  furthered.  At  all  events 


§11]     AN  IDEAL  FOR  LATIN  COUNTRIES      497 

the  scientific  interest  in  a  congress  of  this  kind  cannot 
be  denied.  It  would  mark  a  stage  in  the  renascence  of 
Latin  culture  and  usher  in  a  new  era  of  progress  in  law 
in  general. 

Such,  then,  is  the  new  impulse  which  we  would  wish 
to  see  imparted  to  the  study  of  law,  and  the  new  con- 
ception of  interpretation  and  of  future  codification. 

Once  this  triple  reform  is  realized  in  teaching,  inter- 
pretation, and  codification,  the  law  would  at  least  trans- 
late the  true  social  needs  of  the  period  and  the  ideal  of 
justice  to  which  it  aspires.  Law  would  receive  that 
moral  assent  without  which  rules  cannot  truly  be  effec- 
tive. Law,  justice,  and  equity  would  become  synony- 
mous, so  far  as  that  is  possible.  Legislator,  jurist,  and 
judge  would  each  contribute  a  part  toward  realizing 
the  aim  of  private  law  —  to  regulate  the  relationships 
between  individuals  in  accord  with  the  material  needs 
and  the  moral  ideas  of  contemporary  society. 


498  GENY:  TECHNIC  OF  CODES      [CH.XII 


CHAPTER  XII 

THE  LEGISLATIVE  TECHNIC   OF   MODERN 
CIVIL   CODES 

BY  FRANCOIS  GEXY  1 

§1.  THE  NEED  FOR  LEGISLATIVE  TECHNIC.— §2.  DIF- 
FERENT KINDS  OF  LEGAL  TECHNIC  DEFINED.  —  §  3.  LEGIS- 
LATIVE TECHNIC  IN  THE  NARROW  SENSE.  —  §  4.  THE 
ELEMENTS  OF  LEGISLATIVE  TECHNIC  CLASSIFIED.— 
§5.  THE  TECHNIC  OF  CODIFICATION.  —  §  6.  THE  TECHNIC 
OF  THE  CODE  NAPOLEON.  —  §  7.  HISTORICAL  SOURCES  OF 
THE  TECHNIC  OF  THE  FRENCH  CIVIL  CODE.  —  §  8.  THE 
PRELIMINARY  DRAFTS  OF  THE  FRENCH  CIVIL  CODE.— 
§9.  CHARACTERISTICS  OF  THE  FRENCH  CODE  OF  1804.— 
§  10.  THE  LEGISLATIVE  TECHNIC  OF  THE  FUTURE.  — 
§11.  THE  NEED  FOR  A  CONSCIOUSLY  ADOPTED 
TECHNIC.  —  §  12.  THE  TECHNIC  OF  THE  GERMAN  CIVIL 
CODE.—  §  13.  THE  NEW  SWISS  CIVIL  CODE.  —  §  14.  MERITS 
OF  THE  TWO  TYPES  COMPARED.—  §15.  CONCLUSION. 

§  1.  The  Need  for  Legislative  Technic.  Apparently 
the  idea  that  there  is  a  special  "legislative  technic," 
out  of  which  a  number  of  special  problems  arise,  did  not 
become  clear  to  the  jurists  of  the  world  until  after  the 
work  on  the  new  Civil  Code  of  Germany  had  been  com- 
pleted in  1896. 

i  [Professor  in  the  University  of  Nancy;  also  author  of  chapter  i  of 
this  volume.  The  present  chapter  is  a  translation  of  the  author's 
contribution  to  "Le  Code  Civil,  1804-1904:  livre  du  centenaire," 
Societe  d'Etudes  L6gislatives,  Paris,  1904.  The  translation  is  by 
Ernest  Bruncken.} 


§1]  THE  NEED  FOR  TECHNIC  499 

Of  course  legislators  had  always  paid  attention  to  the 
form  in  which  they  meant  to  cast  their  rules,  the  choice 
of  words  in  which  they  would  express  them,  the  order 
in  which  the  provisions  were  to  be  arranged,  in  brief, 
generally  all  the  means  and  proceedings  appropriate  for 
the  accomplishment  of  the  purpose  in  view.  Moreover, 
we  may  discover  in  all  codifications  whatsoever,  but 
especially  in  those  nearest  to  our  own  time,  and  there- 
fore more  easily  analyzed  by  us,  and  above  all  in  our 
French  Civil  Code  of  1804,  the  influence  of  a  certain 
special  technic.  Sometimes  there  are  but  slight  traces 
of  this,  yet  in  this  rudimentary  form  it  is  indis- 
pensable in  order  to  insure  the  practical  efficacy  which 
is  required  of  all  written  law.  It  seems,  however,  that 
for  a  long  time,  and  until  very  recent  years,  everybody 
was  satisfied  with  this  unconscious  and  purely  instinctive 
technic.  Yet  this  is,  from  every  point  of  view, 
insufficient  if  one  wishes  to  have  a  really  sure  and  stable 
basis  for  comprehensive  legislation. 

It  is  not  even  certain  that  the  men  who  drafted  the 
German  Civil  Code  had  in  mind  any  ideal  more  elevated 
than  the  rather  vague  one  of  producing  a  code  adapted 
to  the  needs  of  present-day  civilization .  Still ,  the  method 
they  adopted  could  not  but  exhibit  clearly  the  qualities 
of  consistency,  homogeneity,  and  accuracy.  And  the 
first  commentators  of  the  "Biirgerliches  Gesetzbuch  fur 
das  deutsche  Reich"  had  little  difficulty  in  showing  that 
it  possesses  as  its  characteristic  feature  a  technic 
firmly  established  and  faithfully  adhered  to,  so  that 
it  is  fit  to  serve,  if  not  as  the  model,  at  least  as  a  standard 
of  comparison  for  all  future  rationally  drawn  codes. 
Whether  one  still  has  his  doubts  or  not  about  the  advan- 
tages or  inconveniences  of  the  form  given  to  the  statute 
in  this  case,  at  any  rate  one  must  draw  from  the  ana- 
lytical and  critical  labors  expended  on  it  the  incontrover- 


500  GENY    TECHNIC  OF  CODES      [CH.XII 

tible  conclusion:  in  every  attempt  at  codification, 
even  in  fragmentary  form,  there  is  an  element  clearly 
distinguishable  which  may  be  called  the  technic, 
and  which  refers  to  the  plan  and  arrangement  of 
the  task.  The  jurist,  whose  business  it  is  to  teach 
us  an  appreciation  of  all  the  relations  of  the  law  to 
social  life,  must  necessarily  be  interested  also  in  this 
element. 

Starting  from  this  proposition,  which  is  simple  enough, 
and  generally  admitted  by  lawyers  of  to-day,  I  shall  try 
to  discover  the  nature  of  this  technic  as  it  exists  at  the 
present  time,  with  particular  regard  to  the  influence 
which  will  be  exerted  on  the  French  legislators  of  the 
future  by  the  splendid  and  undying  example  set  by  the 
Code  Napoleon. 

In  order  to  accomplish  this  purpose  with  as  much 
precision  as  possible,  I  shall  take  up  in  their  order  the 
following  subjects :  (l)  a  definition  of  the  general  problem 
relating  to  legislative  technic;  (2)  a  review  of  the 
manner  in  which  the  problem  has  been  solved  by  the 
French  Civil  Code  of  1804 ;  (3)  an  inquiry  into  whatever 
new  factors  might  enter  into  such  solution  in  case  the 
code  were  to  be  revised. 

§  2.  Different  Kinds  of  Legal  Technic  Defined.  The 
conception  of  legislative  technic  is  dependent  upon  a 
more  general  concept,  of  which  it  is  in  reality  nothing 
but  a  branch.  That  concept  was  carefully  considered 
long  ago  by  Savigny,  studied  more  particularly  in  its 
application  to  Roman  law  with  his  usual  breadth  of 
manner  by  Jhering,  and  taken  up  with  more  precision 
and  succinctness  by  Cuq.  It  is  the  concept  of  a  technical 
element  in  objective  law,  or  of  legal  technic  in  general. 

To  express  the  idea  in  the  fewest  words  in  a  form  least 
open  to  objections,  this  concept  is  deduced  from  a  con- 
sideration of  the  proper  purpose  of  the  law,  understood 


§2]  VARIETIES  OF  TECHNIC  501 

essentially  as  the  body  of  positive  rules  which  governs 
human  beings  in  their  social  relations. 

In  order  to  regulate  human  conduct  in  external 
matters,  which  comprises  the  whole  province  of  law, 
one  must  not  restrict  oneself  to  learning,  by  observation 
and  reflection,  certain  principles  regarding  life  in  society. 
If  the  task  is  to  be  done  in  a  scientific  way,  one  must, 
as  it  were,  set  these  principles  to  work,  and  adapt  them 
to  concrete  conditions.  For  that  purpose  is  needed  a  set 
of  practical  devices,  which  one  might  call  the  tools  of  the 
trade,  and  which  constitute  the  technic  of  the  law. 
Thus  we  have  by  the  side  of  the  element  of  substance, 
which  is  ethical  and  sociological  in  its  nature,  a  formal 
element  in  the  law,  which  is  merely  a  matter  of  practical 
expediency.  It  may  not  always  be  easy  to  separate 
this  element  from  the  former  when  it  is  met  with  in 
real  life,  but  it  is  distinguishable  clearly  enough  to  the 
mind  as  that  which  serves  merely  to  make  possible  the 
practical  application  of  the  rules  of  conduct  in  accordance 
with  the  facts  and  the  nature  of  things. 

Understood  in  this  wide  sense,  technic  holds  an 
important  place  in  the  organization  of  legal  science. 
It  is  capable  of  a  large  number  of  diverse  applications 
which  one  may  arrange  systematically  in  a  series  cor- 
responding to  those  various  parts  of  the  legal  system 
itself  to  which  each  refers. 

First  of  all,  technic  comes  into  play  at  the  very  begin- 
ning of  positive  law  itself.  The  establishment  of  the 
State,  alongside  or  over  and  above  the  various  primi- 
tive groups,  its  organization,  its  way  of  functioning, 
the  whole  body  of  formal  methods  by  which  it  is  intended 
to  bring  about  the  orderly  conduct  of  social  life,  efficiently 
and  accurately,  —  all  this  is  a  matter  of  legal  technic. 
So  it  is  a  matter  of  technic  when  one  considers  the  arti- 
ficial sources  of  law:  the  written  law,  with  its  rigid 


502  GENY:  TECHNIC  OF  CODES      [Cn.XII 

precepts,  which  take  hold  of  the  acts  of  persons,  sometimes 
insufficiently  or  even  awkardly,  but  with  the  purpose* 
of  casting  them  into  a  definite  mold  to  overcome  their 
insidious  pliability,  and  to  make  them  follow  definite 
lines ;  legal  customs  likewise,  in  so  far  as  it  is  attempted 
to  fix  their  nature  in  order  to  make  them  more  effective, 
and  to  bring  them  within  definite  categories  which 
seemed  originally  foreign  to  the  nature  of  mere  custom ; 
the  authority  of  commentators  and  courts,  whereby 
scientific  inquiry  is  simplified  by  utilizing  the  manner 
in  which  tradition,  the  decisions,  daily  practice,  and 
science  are  kept  plastic  by  contact  with  living  realities; 
finally  codification,  which  by  clearing  away  all  prior 
law  regarding  the  subject  to  which  it  refers  prepares  a 
virgin  soil  and  a  solid  foundation  on  which  to  build  a 
new  legal  edifice. 

On  a  higher  level,  technic  plays  its  part  in  the  applica- 
tion of  the  law  actually  in  effect.  Such  matters  comprise 
the  forms  of  process  by  means  of  wrhich  the  executive 
power  may  insure  good  order;  or  the  manner  in  which 
causes  may  be  submitted  to  the  courts  for  the  solution 
of  legal  difficulties,  under  forms  that  safeguard  the  rights 
of  parties  and  are  conclusive;  or  where  extrajudicial 
legal  advice  is  given,  in  the  proper  legal  manner,  in  order 
to  make  it  easier  to  shape  future  acts  in  harmony  with 
the  rules  of  law  and  to  put  the  latter  into  actual  effect. 

When  we  come  to  look  at  what  might  be  called  the  in- 
ternal formation  and  elaboration  of  positive  law,  as  it 
manifests  itself  in  the  proper  functions  of  counselors  at 
law,  we  again  find  legal  technic  in  the  thousand  diffi- 
cult paths  of  legal  interpretation.  There  it  tends  to  find 
appropriate  forms  for  the  working  of  legal  institutions, 
it  simplifies  complexities  and  facilitates  distinctions, 
whereby  the  social  body  is  enabled  to  assimilate  to  itself 
the  substance  of  the  law ;  it  helps  the  body  of  rules  to 


§2]  VARIETIES  OF  TECHNIC  503 

enter  into  the  actual  current  of  human  life;  in  brief,  it 
'procures  the  greatest  possible  efficacy  of  law  in  accord- 
ance with  the  nature  of  men  and  things. 

The  last-named  form  of  legal  technic,  which  I  should 
like  to  call  "fundamental  technic,"  is  the  most  charac- 
teristic for  the  reason  that  it  is  independent  of  the 
formal  organization  of  society  and  refers  to  the  most 
fundamental  ideas  of  legal  science.  Moreover,  it  con- 
tains in  reality  all  the  others  within  itself.  It  exhibits 
most  clearly  the  inmost  purpose  of  the  science  of  posi- 
tive law,  which  is  none  other  than  to  imbue  legal  rules 
with  actual  life,  so  that  they  become  fit  to  regulate  those 
phenomena  —  physical,  psychological,  moral,  political, 
economic  —  in  which  the  nature,  tendencies,  needs,  and 
also  the  conflicts  of  interest  of  human  beings  living  in 
society  manifest  themselves.  Now,  the  most  common 
method  by  which  legal  technic,  understood  in  this 
sense,  proceeds  is  to  point  out  the  salient  forms  assumed 
by  the  various  realities  of  social  life,  and  to  arrange  these 
in  their  logical  categories  so  that  the  real  meaning  of  the 
rule  may  be  understood  with  the  help  of  scientific  think- 
ing. This  process  may  be  easily  observed  both  in  the 
elaboration  of  general  legal  ideas,  such  as,  for  instance, 
the  organization  of  the  family,  property  and  its  divi- 
sions, succession,  liability,  juridical  persons,  and  in  the 
formation  of  particular  concepts,  such  as  domicile, 
absence,  notoriousness  of  easements  and  other  rights 
in  land,  the  effects  of  possession  of  chattels,  or  of  incor- 
poreal rights  in  property,  quasi-usufruct,  etc.  This  pro- 
cess implies  first  the  statement  of  facts,  then  their  repre- 
sentation in  the  form  of  ideas,  and  finally  the  expression 
of  such  ideas  by  words.  "Fundamental  legal  technic" 
will  be  most  successful  in  its  operations  in  the  degree  in 
which  it  brings  about  the  most  complete  correspond- 
ence between  those  three  steps  —  facts,  ideas,  verbal 


504  GENY:  TECHNIC  OF  CODES      [Cn.XII 

expression  —  so  as  to  develop  an  actually  living  law.  It 
will  fail  and  miss  its  goal  when  it  separates  the  expression 
from  the  idea  to  be  expressed,  as  if  it  had  a  value  of  its 
own.  In  this  connection,  it  is  not  without  interest  to 
note  that  legal  technic  has  an  inveterate  tendency  to 
become  largely  a  question  of  terminology,  as  language  is 
the  most  characteristic  technical  instrument  of  the  entire 
life  of  society. 

Furthermore,  it  goes  without  saying  that  legal  technic 
in  general  is  bound,  even  more  than  the  other  elements  of 
the  legal  organism,  to  develop  and  undergo  changes  in 
accordance  with  the  successive  changes  of  conditions  in 
social  life.  For  instance,  it  is  clear  that  our  law,  although 
it  derives  certain  of  its  methods  from  the  labors  of  Roman 
jurisconsults,  has  actually  been  obliged  to  rejuvenate 
these,  as  it  were,  and  to  some  extent  actually  to  renew 
them  entirely.  On  examination  one  can  easily  discover 
how  certain  forms,  in  their  course  of  historical  trans- 
formation, have  not  so  much  disappeared  from  the  legal 
life  of  modern  times  as  undergone  an  essential  change,  and 
often  are  applied  in  ways  quite  different  from  those  that 
had  to  be  abandoned.  Consider,  for  instance,  commer- 
cial papers,  instruments  payable  to  bearer,  registers  of 
titles  to  land.  Moreover,  the  technic  of  a  body  of  law 
based  principally  on  statutes  cannot  be  the  same  as  that 
of  a  law  consisting  principally  of  customs.  More  particu- 
larly, the  introduction  of  codifications  is  likely  to  bring 
about  a  completely  novel  set  of  principles  relating  to  legal 
technic,  and  even  these  changes  will  vary  according 
to  the  kind  of  codification.  Notably,  the  codifications 
actually  existing  among  modern  nations  are  likely  to 
require  quite  a  different  sort  of  technic  from  that  which 
is  appropriate  to  law  built  upon  the  Code  of  Justinian. 

While  all  this  is  true  in  general  of  all  the  branches  of 
legal  technic,  it  is  especially  so  with  regard  to  legislative 


§2]  VARIETIES  OF  TECHNIC  505 

technic.  We  must  now  turn  to  that,  so  as  to  define  its 
essential  character,  trace  the  various  elements  of  which 
it  is  composed,  and  thereby  be  enabled  to  understand 
clearly  the  problem  to  which  it  gives  rise. 

§  3.  Legislative  Technic  in  the  Narrow  Sense.  The 
technic  of  legislation  consists  essentially  of  that  group  of 
mental  processes  by  which  the  principal  source  of  positive 
law  among  the  moderns,  to  wit,  written  law,  is  made  fit 
to  serve  its  specific  purpose,  which  is  none  other  than  that 
of  directing  human  conduct  towards  the  ultimate  object 
of  all  legal  order.  In  effect,  what  the  legislator  intends  to 
do  is  to  establish  certain  fixed,  imperative,  and  categorical 
rules  by  which  he  may  draw  definite  lines  of  demarcation 
between  conflicting  human  interests  and  thereby  insure 
the  order  necessary  for  the  development  of  social  life. 
Even  taken  by  itself,  the  invention  of  such  rules  does,  as 
we  have  seen  above,  constitute  an  exercise  of  legal 
technic.  Legislative  technic  in  a  special  sense,  however, 
refers  to  the  methods  by  which  these  legal  rules  are 
conceived  and  worked  out,  and  this  special  sense  we  have 
in  mind  in  the  present  place.  It  comprises  a  number  of 
well-defined  varieties,  according  to  the  character  of  the 
work  in  hand,  and  notably  according  to  whether  the  work 
in  hand  is  that  of  making  isolated  statutes  or  of  adopting 
a  full  code  of  laws.  Thus  one  might  distinguish  between 
the  technic  of  fragmentary  legislation  and  that  of  codifi- 
cation. The  latter  presents  a  number  of  notable  pecu- 
liarities, such  as  those  dealing  with  coordination  of  the 
various  parts,  recasting  of  existing  provisions,  and  es- 
pecially what  might  be  called  "legislative  novation," 
that  is,  the  questions  arising  out  of  the  partial  repeal  of 
existing  provisions.  Beyond  all  these  specific  details, 
however,  one  may  perceive  the  idea  of  a  general  technic 
relating  to  the  written  law,  an  idea  comprising  the 
entire  task  of  establishing  rules.  This  general  technic  is 


506  GENY:  TECHNIC  OF  CODES      [Cn.XII 

sufficiently  distinct  to  become  the  subject  of  a  separate 
study,  into  which  the  specific  elements  distinguishing 
codification  from  legislation  in  general  need  not  enter 
except  as  accessories  found  by  the  way. 

The  details  of  this  legislative  technic  prove  to  be 
infinitely  copious  and  variegated,  but  it  appears  that 
practically  all  these  mental  processes  may  be  classified 
in  two  series  of  ideas. 

The  first  of  these  has  to  do  with  the  names  by  which 
legislative  power  can  be  so  organized  as  to  perform  its 
functions  in  harmony  with  the  requirements  of  its  appro- 
priate purpose.  For  it  will  not  suffice  simply  to  say  that 
this  power  must  be  constituted  for  the  purpose  of  dis- 
covering and  sanctioning  the  sort  of  law  which  is  appro- 
priate to  a  given  people  at  a  given  time.  One  has  to 
arrange  for  it  the  machinery  necessary  to  enable  it  to 
formulate  rules  capable  of  governing  social  life  effica- 
ciously. This  is  particularly  a  matter  of  constitutional 
law,  which  in  its  nature  must  contain  a  considerable 
amount  of  what  is  properly  technic.  Especially  when 
it  is  desired  to  pass  measures  of  broad  scope,  and  still 
more  in  the  case  of  actual  codifications,  the  ordinary 
parliamentary  procedure  will  not  suffice.  A  number 
of  additional  steps  will  be  adopted,  calculated  to  expedite 
the  work  of  legislation  and  to  insure  homogeneous 
results:  adoption  of  preliminary  resolutions  outlining 
the  purpose  and  scope  of  the  proposed  legislation; 
the  preparation  of  a  draft,  either  by  some  person  of 
eminence  with  the  assistance  of  skillful  counselors,  or 
by  an  extra-parliamentary  commission  of  few  and 
specially  expert  members;  the  adoption  of  the  draft 
as  a  whole,  or  in  large  portions,  with  as  little  dis- 
cussion as  possible,  etc.,  etc.  Briefly,  we  find  a  large 
group  of  legal  devices  peculiar  to  this  branch  of  law. 
These  constitute  what  I  should  propose  to  call  the 


§3]  LEGISLATIVE  TECHNIC  507 

external  mechanism  of  the  technic  of  written  legis- 
lation. 

However,  we  are  not  at  present  considering  this  essen- 
tially accidental,  variable,  and  arbitrary  side  of  legislative 
technic.  There  is  also  an  internal  or  substantial  side 
to  it  which  is  the  more  profoundly  important  of  the  two, 
because  it  relates  to  the  contents  of  the  law  itself,  inde- 
pendently of  the  manner  in  which  the  legislature  is  con- 
stituted or  pursues  its  labors.  Leaving  aside  the  con- 
sideration of  the  rational  basis  of  this  part  of  legal 
technic,  which  must  be  discovered  by  the  science  of 
sociology  by  starting  from  an  ethical  assumption,  we 
may  take  up  the  question  what  form  this  technic  should 
assume  in  order  to  cover  and  regulate  as  efficaciously  as 
possible  those  jural  relations  which  require  statutory 
regulation.  In  other  words,  how  can  one  make  a  statute 
or  code  which  will  work  in  accordance  with  the  require- 
ments of  practical  life? 

The  problem  thus  stated  may  be  divided  into  a  large 
number  of  separate  questions  all  of  which  have  in  com- 
mon this  indubitable  truth,  that  a  statute  is  an  expression 
of  human  thoughts  by  language,  i.e.  by  words  and 
groups  of  words,  intended  to  produce  in  the  minds  of 
those  to  whom  it  is  addressed  intellectual  processes 
similar  to  those  which  were  present  in  the  mind  of  the 
persons  from  whom  the  statute  emanated.  Speaking 
a  little  more  broadly,  one  should  say  that  a  statute  is  a 
literary  work  of  a  particular  kind,  with  a  very  specific 
purpose  in  view.  Accordingly,  nobody  is  likely  to 
disagree  with  the  proposition  that  a  "good"  statute 
or  a  "good"  code  must  first  of  all  exhibit  those  qualities 
which  every  literary  work  ought  to  have,  and  which 
are  addressed  to  the  intelligence  and  the  will  rather 
than  the  imagination  or  the  feeling:  unity,  order,  pre- 
cision, clearness. 


508  GENY:  TECHNIC  OF  CODES      [CH.XII 

Proceeding,  however,  with  an  analysis  of  the  elements 
which  make  a  statute  adapted  to  its  purpose,  it  seems 
that  the  law  should  be  considered  both  with  regard  to 
the  object  it  seeks  to  accomplish  and  the  means  which 
it  employs  for  that  purpose.  Under  this  somewhat 
complicated  aspect  of  the  matter,  two  alternatives  have 
been  propounded.  Is  a  statute  the  product  of  individual 
wills  and  consequently  reflecting  purely  subjective 
conceptions,  limited  by  a  strictly  individual  horizon? 
Or,  is  it  not  rather  evident  that  there  is  in  it  an  element 
of  collective  life  which  reproduces  more  or  less  faithfully 
the  manner  in  which  a  given  society  at  a  given  time 
exists,  and  does  it  not  therefore  partake  of  the  dynamic 
nature  of  every  entity  that  is  at  bottom  social?  I  do 
not  believe,  however,  that  the  opposition  between 
these  two  alternatives  is  insuperable.  They  are  the 
result  of  differing  points  of  view,  and  each  is  true  for 
the  particular  relation  in  which  it  comprehends  the 
statute.  Considered  in  a  profound  sense,  i.e.  in  its 
inner  nature  and  as  a  part  of  the  social  world,  the  statute 
has  issued  from  collective  life  and  does  not  cease  to  be  a 
part  of  it  because  it  has  passed  through  the  brain  of 
the  lawmaker.  The  latter  dare  not  with  impunity  even 
make  light  of  the  eminently  sociological  character  of  his 
work,  which  he  must  needs  construct  according  to  the 
experience  of  the  past  as  well  as  in  harmony  with  the 
needs  of  the  moment  and  in  anticipation  of  the  new 
exigencies  which  the  future  will  present.  If,  however, 
one  sees  in  the  statute  rather  the  means  of  giving  to 
the  human  will  the  precise  and  firm  direction  of  which 
it  stands  in  need;  if  one  considers  it  no  longer  merely 
as  the  expression  of  a  social  fact  but  as  a  method  intended 
to  adapt  human  conduct  to  a  given  end ;  and  especially 
when  one  asks  himself  in  what  form  it  can  best  attain 
that  sureness  of  effect  which  principally  justifies  its 


§3]  LEGISLATIVE  TECHNIC  509 

claim  of  being  a  source  of  positive  law,  —  then,  it  seems 
to  me,  we  shall  be  compelled  to  treat  it  primarily  as 
the  act  of  a  determined  will,  tending,  by  means  of  the 
sanctions  with  which  it  is  endowed,  to  impose  itself  on 
other  wills  in  the  most  adequate  manner  possible,  by 
means  of  human  speech  and  all  the  resources  language 
has  at  its  disposal. 

Now,  this  latter  point  of  view  cannot  but  be  most 
preponderant  in  the  conception  of  legislative  technic. 
I  declare  that  I  cannot  well  see  by  what  miracle  of  self- 
effacement  one  can  require  a  legislator  to  remove  from 
the  work  he  performs  the  inevitable  imprint  of  his  own 
personality,  and  to  become  the  strictly  passive  inter- 
preter of  that  very  vague  collective  entity,  society.  That 
is  what  a  strictly  sociological  conception  of  statute  law 
would  mean.  Moreover,  the  legislator  could  not  define 
the  intentions  of  society  except  by  molding  them  by 
his  own  individual  will.  In  spite  of  all  fictions,  the 
sense  and  meaning  of  the  text  is  derived,  so  far  as  that 
can  be  traced  at  all,  exclusively  from  such  individual 
wills.  No  doubt,  even  from  this  point  of  view  the  author 
of  a  statute  must  not  forget  that  his  provisions,  being 
intended  to  regulate  collective  life,  which  is  complex 
and  changeable,  will  fail  of  their  purpose  if  they 
cannot  adapt  themselves  to  all  social  transformations, 
variations,  and  developments.  Yet  it  is  no  less  true, 
as  he  desires  and  must  desire  an  immediately  useful 
and  practical  effect,  that  the  legislator  must  first 
direct  his  energies  to  expressing  the  action  which  he 
wishes  to  induce  in  those  subject  to  his  law  with  the 
greatest  exactitude,  while  at  the  same  time  he  tries  to 
insure  the  greatest  safety  for  their  interests.  And  the 
various  parts  of  the  technic  of  written  law  can  be  deter- 
mined only  with  these  considerations  held  firmly  in 
mind. 


510  GENY:   TECHNIC  OF  CODES      [CH.XII 

§  4.  Elements  of  Legislative  Technic  Classified.  These 
various  elements  constituting  legislative  technic  appear 
to  be  so  numerous  and  diversified,  even  if  we  confine 
ourselves  consciously  to  the  "internal  and  substantial 
side"  only,  that  one  cannot  think  of  giving  an  exhaustive 
description.  No  doubt  it  will  suffice  to  attempt  a 
summary  outline,  so  as  merely  to  show  the  nature  and 
importance  of  the  legislative  task  in  this  respect. 

1.  Some  of  these  parts  refer  exclusively  to  general 
legislation.  First,  after  the  necessity  for  statutes  occupy- 
ing the  entire  field  of  legal  life  has  been  established,  it  will 
become  necessary  to  fix  the  essential  nature  of  the  work 
to  be  undertaken.  Is  it  to  be  simply  a  consolidation 
and  compilation  of  legal  rules  already  in  force,  or  instead 
a  real  codification  which  will  destroy,  by  absorption, 
the  whole  or  a  portion  of  the  body  of  law  as  it  existed 
theretofore?  Whichever  way  the  decision  goes,  it  will 
be  necessary  to  determine  the  extent  of  the  body  of 
statutes  to  be  drawn,  and  then  to  distribute  them  among 
a  number  of  parts  ("codes"),  which  in  turn  must  be 
conveniently  subdivided.  Again,  each  of  the  parts 
will  have  to  be  arranged  on  some  plan  or  system  in 
which  one  may  proceed  according  to  very  diverging 
lines.  Notably  in  the  case  where  the  legislator  is  to 
confine  himself  to  what  is  commonly  known  as  a  civil 
code,  it  will  be  well  to  choose  a  manner  of  subdividing 
which  is  very  closely  adapted  to  the  end  in  view.  The 
codification,  either  as  a  whole  or  in  some  of  its  subdivi- 
sions, may  either  leave  intentional  gaps,  or  on  the  other 
hand  proceed  upon  the  idea  of  covering  as  completely 
as  possible  the  whole  province  of  the  law  to  which  it 
refers.  And  if  the  last-named  plan  is  adopted,  one 
must  not  forget  to  devise  some  method  by  which  the 
completeness  desired  may  be  achieved  and  yet  the  work 
be  kept  purely  juridical  by  excluding  from  the  entire 


§4]  ELEMENTS  CLASSIFIED  511 

body  of  statutes  and  its  various  portions  every  foreign 
element. 

2.  By  the  side  of  these  and  similar  questions  peculiar 
to  the  technic  of  codification  there  are  seen  others  which 
are  still  more  nice  and  delicate,  and  constitute  the  real 
problem  of  legislative  technic.  They  arise  after  those 
described  above  have  been  solved,  and  generally  in  con- 
nection with  every  kind  of  written  law,  when  it  becomes 
necessary  to  determine  how  the  law  shall  be  drawn  in 
order  to  correspond  to  the  purpose  in  view.  It  would 
seem  that  all  these  elements  of  technic,  thus  common 
to  all  written  laws,  may  be  referred  to  three  principal 
classes  which  in  their  order  of  definiteness  are  as  follows : 
general  character  of  the  legislation  intended;  intrinsic 
nature  of  the  legal  provisions;  style  and  terminology 
of  the  text  which  is  to  express  them. 

(a)  The  general  character  of  the  legislation  will  be  fixed 
principally  by  the  answers  given  to  the  following  ques- 
tions: Are  we  to  confine  ourselves  simply  to  giving  a 
legal  rule  proper,  or  shall  we  supplement  this  by  a 
preamble  stating  the  reasons  for  the  law  in  an  indispu- 
table and  official  manner?  Shall  we  invariably  give 
direct  commands  or  refer  frequently  from  one  section 
to  the  other?  Shall  the  text  be  written  in  ordinary 
language  or  shall  we  give  it  a  scientific  and  technical 
form?  Is  it  better  to  give  concrete  rules  or  shall  we 
prefer  abstract  general  rules  to  express  the  meaning 
of  the  legislator? 

(6)  The  last -mentioned  question  carries  with  it  still 
other  problems  concerning  more  directly  the  intrinsic 
nature  of  legal  rules.  In  this  connection  one  must,  first 
of  all,  make  certain  whether  the  statute  may  deal  with 
theoretical  concepts,  or  should  rather  concern  itself  with 
mere  rules  regarding  practical  conduct.  Further,  what 
part  shall  be  played  in  the  act  by  the  various  logical 


512  GENY:  TECHNIC  OF  CODES      [Cn.XII 

means  of  expressing  the  ideas  contained  in  legal  pro- 
visions, such  as  definition,  classification,  and  the  like? 
Again,  shall  the  statute  be  imperative  or  prohibitive, 
shall  it  give  a  permission  or  actively  enforce  a  com- 
mand? Finally,  one  will  have  to  determine  to  what 
extent  fictions,  presumptions,  and  other  artificial  devices 
are  to  be  employed  in  order  to  insert  into  the  legal 
provision  notions  which  it  may  be  deemed  inexpedient 
to  express  directly. 

(c}  The  most  clearly  defined  part  of  the  technical 
problem  is  the  consideration  of  the  style  or  phraseology 
and  the  terminology  which  are  to  be  employed  in  drawing 
a  statute  or  other  written  law.  For  we  must  pay  atten- 
tion not  only  to  the  ordinary  questions  arising  with 
all  fcrms  of  literary  style  and  make  our  choice  between 
brevity  and  length,  conciseness  or  diffuseness,  conden- 
sation of  the  thought  at  the  risk  of  becoming  obscure, 
or  clearness  with  a  certain  unavoidable  degree  of  ver- 
bosity. Our  object  is  to  draw  certain  formulas  that 
will  plainly  express  the  will  of  the  legislator,  and  for 
that  purpose  we  cannot  escape  the  necessity  of  seeking 
for  the  linguistic  and  grammatical  forms  best  adapted 
to  doing  so.  Probably  we  shall  also  discover  that  our 
rules  require  a  different  syntax  accordingly  as  they  are 
of  imperative,  prohibitive  or  permissive,  or  auxiliary 
nature,  and  this  different  form  of  expression  may  be 
found  to  have  a  bearing  on  certain  intricate  questions, 
such  as  for  instance  the  burden  of  proof. 

Above  all  other  things,  the  question  has  to  be  settled 
whether  it  will  be  enough  to  employ  popular  language 
with  all  its  inaccuracies  and  ambiguities,  or  whether  it 
will  not  be  better  to  make  use  of  a  special  terminology 
invented  for  that  purpose,  derived  from  the  traditional 
stock  of  legal  expressions,  but  accentuating  its  clearness 
and  definiteness,  and  to  take  care  that  each  term  is 


§4]  ELEMENTS  CLASSIFIED  513 

constantly  used  in  precisely  the  same  sense;  so  that  its 
rigid  limitations  may  prevent  as  much  as  possible  any 
vacillation  in  interpreting  it. 

These  are  the  grand  outlines  of  legislative  technic  as 
distinguished  from  that  which  I  have  called  fundamental 
legal  technic.  The  latter  will  necessarily  be  made  use 
of  by  the  former,  as  for  instance  in  the  use  of  fictions  and 
presumptions.  Legislative  technic  as  here  defined  will 
not  include  certain  special  applications  of  technical 
methods,  such  as  for  instance  the  special  technic  of 
declaratory  statutes,  repealing  acts,  and  also  such  matters 
as  the  "schedules"  or  temporary  provisions  of  acts,  the 
manner  of  their  promulgation,  etc. 

§  5.  The  Technic  of  Codification.  Although  these 
problems  are  rarely  studied  by  themselves,  yet  the 
subject  itself  has  not  escaped  the  attention  of  thinkers 
who  have  devoted  themselves  to  the  art  of  legislation 
in  general. 

It  should  be  stated,  however,  that  this  theory  of  legis- 
lative technic,  as  it  may  be  called,  has  become  more 
and  more  enveloped  in  detail.  The  authors  who  have 
dealt  with  the  subject  were  at  first  interested  in  the  most 
general  aspects,  but  gradually  writers  have  come  down 
to  the  consideration  of  more  and  more  special  details. 
Thus  Bacon  and  Montesquieu  dispose  of  this  subject 
with  a  few  easily-made  observations.  Bentham,  on  the 
other  hand,  examines  pretty  thoroughly  the  various 
technical  aspects  of  codification  and  the  general  nature  of 
legislation  in  its  various  forms.  He  has  clear  notions 
regarding  the  external  qualities  of  a  statutory  text;  he 
does  not  even  pass  by  the  question  of  technical  terms. 

At  a  later  time,  the  question  of  the  drawing  of  codify- 
ing statutes  was  taken  up  again,  in  France,  in  a  broad 
but  unfortunately  a  little  metaphysical  and  sometimes 
over-emphatic  manner  by  Rousset.  His  opinions  were 


514  GENY:   TECHNIC  OF  CODES      [Cn.XII 

strictly  systematic  and  perhaps  a  little  too  confidently 
expressed,  so  that  no  doubt  on  account  of  its  conspic- 
uous faults  the  work  found  but  scanty  consideration. 
Yet  it  has  the  merit  of  pointing  out  the  importance 
attaching  to  the  proper  construction  of  the  legislative 
sentences  and  of  rigorous  adherence  to  the  termin- 
ology adopted.  However,  this  side  of  the  subject,  which 
to-day  attracts  most  attention,  was  not  seen  clearly  until 
the  critics  and  commentators  of  the  German  Civil  Code 
of  1896  began  their  wyork.  For  these,  the  question  of 
legislative  technic  seemed  to  be  almost  altogether  a 
question  of  the  wording  of  clauses  and  the  choice  of  the 
proper  words. 

It  would  seem,  however,  that  at  the  present  day  the 
most  general  questions  concerning  the  technic  of  codes 
of  law,  such  as  we  have  analyzed  above,  are  sufficiently 
solved;  yet  this  has  been  done  far  less  by  rational 
discussion  than  by  the  results  of  practical  experience. 
Consequently  we  have  before  us  a  number  of  admitted 
principles,  about  which  it  would  be  vain  to  dispute 
further,  but  which  may  on  the  contrary  serve  as  the 
starting  points  of  further  research. 

Notably,  we  no  longer  doubt  the  expediency  of  exten- 
sive codification,  superseding  all  preexisting  rules  and 
comprising  all  the  positive  law  of  the  country,  divided 
into  a  number  of  codes.  These  codes  should  be  cleared 
of  every  extra-juridical  element,  and  the  character  of 
each  is  pretty  definitely  fixed  by  the  traditions  of  the 
profession  in  Europe.  That  tradition  implies  a  pecu- 
liar form,  with  various  divisions  and  subdivisions,  and  the 
lowest  subdivisions  arranged  in  a  single  numerical  series. 
At  the  foundation  of  the  whole  system  will  be  found  a 
civil  code,  which  will  necessarily  be  the  core  of  the  legal 
system  of  the  country.  On  the  other  hand,  hardly  any- 
body would,  to-day,  believe  with  Bentham  in  the  useful- 


§5]  CODIFICATION  515 

ness  of  an  official  commentary  on  the  law,  while  nearly 
everybody  would  agree  with  Bacon  that  a  code  should 
contain  nothing  but  rules,  meaning  thereby  not  only  the 
direct  legal  commands  but  also  all  provisions  calculated 
to  make  the  law  more  easily  comprehended  by  private 
citizens,  officials,  and  judges.  All  this  should  be  done  in 
the  briefest  possible  form  compatible  with  clearness 
and  completeness. 

Thus  the  general  outline  of  modern  legislative  labors  is 
in  a  way  established — "ne  varietur."  Within  these  broad 
lines,  however,  there  is  room  for  many  and  varied  designs. 
Their  accomplishment  constitutes,  especially  from  the 
French  point  of  view,  the  living  and  breathing  part  of 
the  problem  of  legislative  technic.  What  has  been  defin- 
itely settled  has  transformed  the  nature  of  these  ques- 
tions, but  not  done  away  with  them.  While  the  general 
questions  of  the  wisdom  of  codification,  and  of  the  form 
it  ought  to  take,  may  be  considered  as  settled,  a  new 
and  urgent  problem  arises  by  reason  of  the  age  of  some 
of  the  codes  which  have  contributed  most  to  the  settle- 
ment. This  is  especially  true  of  our  own  Civil  Code  of 
1804,  and  the  question  is  that  of  revision.  This  problem 
presents  some  difficulties  of  legislative  technic  under 
quite  a  new  aspect.  These  refer,  e.g.,  to  the  questions 
whether  such  revision  should  proceed  piecemeal  or  in 
large  portions,  whether  there  should  be  an  entirely  new 
code  or  whether  the  text  should  merely  be  brought  up 
to  date,  and  in  what  order  the  revision  of  the  various 
codes  should  be  taken  up.  Not  to  speak  of  other  subjects, 
any  examination  of  the  last-named  questions  will  resus- 
citate the  discussions  regarding  the  proper  plan  and 
scope  of  a  civil  code. 

Leaving  aside  altogether  the  substance  of  the  law,  and 
considering  merely  the  form  most  adapted  to  modern 
conditions,  we  shall  find  most  serious  doubts  existing 


516  GENY:   TECHNIC  OF  CODES       [CH.XII 

regarding  the  form  of  legal  commands  that  should  be 
adopted,  regarding  the  kind  of  diction  —  ordinary  or 
technical  —  in  which  the  code  should  be  written,  the  most 
apt  phrases  to  express  its  meaning,  and  regarding  the 
choice  of  expressions  and  the  most  appropriate  termin- 
ology. 

One  will  easily  see,  moreover,  that  all  these  questions 
depend  to  a  great  extent  on  the  rank  assigned  to  the 
written  law  within  the  whole  body  of  the  law  of  our 
own  time.  According  as  we  believe  that  it  should  more 
and  more  dominate  and  include  the  entire  field,  we  are 
likely  to  follow  one  or  the  other  of  two  tendencies.  We 
may  characterize  these  by  few  words :  the  one  tendency 
requires  rigorous  and  close  technic  by  which  it  seeks  to 
express  the  intention  of  the  legislator  as  definitely  as 
possible ;  the  other  is  satisfied  with  an  easier  and  elastic 
technic  so  that  the  statutory  law  is  hardly  distinguish- 
able from  other  legal  rules. 

When  the  matter  is  put  in  this  way,  it  becomes  fruitless 
to  discuss  technic  further  by  mere  abstract  reasoning; 
its  principles  must  now  be  ascertained  by  the  observa- 
tion of  facts,  and  especially  by  the  experience  of  the  more 
recent  past. 

§  6.  The  Technic  of  the  Code  Napoleon.  The  very 
first  glance  at  the  French  Civil  Code,  which  was  finally 
adopted  by  the  Law  of  the  30th  Vent6se  of  the  Year  XII 
(March  21,  1801)  will  lead  us  to  assert  without  hesita- 
tion that  its  draftsmen  hardly  had  in  mind  a  seriously 
considered  and  constantly  applied  technical  principle. 
However,  instead  of  a  legislative  method  consciously 
pursued  and  clearly  defined,  we  shall  find  in  the  easily 
flowing,  lucid,  and  simple  provisions  of  our  civil  code 
a  sort  of  unconscious  technic.  Its  origin  dates  far  back, 
to  the  ancient  books  of  customs,  the  treatises  of  the  old 
legal  writers,  and  especially  the  royal  ordinances  and 


§6]  THE  CODE  NAPOLEON  517 

still  more  the  acts  passed  during  the  Revolution.  Old  as 
it  is,  this  technic  becomes  truly  new  under  the  form- 
giving  strokes  of  the  legal  genius  of  modern  France. 
It  is  true  that  it  may  appear  imperfect  and  antiquated 
to  us,  yet  it  has  undergone,  not  without  success,  the 
test  of  practical  experience.  It  certainly  does  not 
seem  —  quite  the  contrary  —  as  if  the  products  of  more 
recent  French  legislation  were  superior  to  it.  It  will 
not  be  without  interest  to  attempt  the  tracing  of  its 
principal  features. 

In  doing  so,  I  shall  intentionally  neglect  almost 
altogether  what  (under  the  terminology  outlined  above) 
I  have  called  the  outward  mechanism  of  the  legislative 
technic  of  the  Civil  Code,  because  it  is  dependent  on 
the  constitutional  machinery  of  which  the  details  are 
sufficiently  well-known.  I  shall  merely  recall  to  mind 
that  the  draft  was  first  prepared  by  a  commission  of 
four  draftsmen,  of  practical  experience,  appointed  by 
the  Government;  that  the  text  was  then  worked  out  in 
a  diligent,  meticulous,  and  careful  manner  by  the  Council 
of  State,  with  the  legislative  section  of  that  body  doing 
the  principal  work  of  drafting;  that  it  was  then  revised 
by  the  Tribunate,  which  at  first  gave  merely  negative 
criticisms  but  afterwards  became,  through  its  legislative 
section,  an  active  collaborator;  and  that  it  was  finally 
submitted  to  the  vote  of  the  Legislative  Body,  where 
further  amendment  was  still  in  order.2 

Here  I  shall  limit  myself  to  a  consideration  of  the 
legislative  technic  which  was  the  result  of  the  work  of 
all  these  bodies  on  what  I  have  called  above  its  internal 
or  substantial  side,  and  to  a  search  for  its  historical 
sources ;  and  I  shall  also  trace  how  its  growth  is  apparent 

2  [For  a  fuller  account  of  the  legislative  history  of  the  Code,  see  the 
chapter  by  Professor  Planiol,  in  "General  Survey  of  Continental  Legal 
History"  (Boston,  1912),  being  vol.  i  of  the  Continental  Legal  History 
Series.  —  ED.] 


518  GENY:  TECHNIC  OF  CODES      [CH.XII 

in  the  preparatory  labors,  and  finally  show  how  it 
becomes  apparent  in  the  final  form  of  the  Code  of  1804. 
§  7.  Historical  Sources  of  the  Technic  of  the  French 
Civil  Code.  It  is  well  known  that  during  the  later  times 
of  the  Monarchy,  and  especially  from  the  reign  of  Louis 
XIV,  the  form  of  the  royal  ordinances  had  become 
distinguished  for  lucidity,  accuracy,  and  completeness. 
Thereby  a  special  legislative  style  appropriate  to  the 
work  of  codification  was  foreshadowed  and  to  some 
extent  created.  For  one  thing,  the  most  notable  of 
these  ordinances,  among  them  some  having  to  do  par- 
ticularly with  the  ordinary  private  law,  embraced  a 
number  of  subjects  which  they  attempted  to  regulate 
in  a  rational  and  logical  order.  Furthermore,  the 
text  of  these  laws,  compared  with  that  of  the  cus- 
toms or  the  more  ancient  ordinances,  showed  a  manifest 
effort  to  grasp  the  realities  of  the  subject  of  which  these 
laws  treated,  and  to  subject  them  to  closely  knitted 
rules.  In  fact,  important  provisions  of  some  of  these 
ordinances  could  be  inserted  directly  as  they  stood  into 
the  final  form  of  the  Civil  Code.  Not  to  speak  of  num- 
erous sections  of  the  title  relating  to  the  civil  status 
(especially  sections  40,  41,  43,  46,  52,  57,  79,  81),  which 
were  taken,  with  a  few  amendments,  from  the  Ordinance 
of  April,  1667,  and  the  Declaration  of  April  9,  1736, 
or  some  provisions  of  the  Edict  of  June,  1771,  which 
were  inserted  with  barely  a  few  verbal  changes  in  sec- 
tions 2191-6  of  the  Civil  Code,  it  is  well  known  that 
whole  portions  of  the  Code  are  borrowed  directly  from 
earlier  regulations.  Thus  the  rules  regarding  the  legal 
form  and  the  irrevocability  of  donations  "inter  vivos" 
were  taken  from  the  Ordinance  of  February,  1731  (sec- 
tions 931,  932,  934,  935,  937,  939,  941-6,  960-6, 
1084,  1086,  1087  of  the  Civil  Code);  the  formalities  of  a 
will  from  the  Ordinance  of  August,  1735  (sections 


§7]  HISTORICAL  SOURCES  519 

1051-7  of  the  Civil  Code) ;  the  provisions  relating  to  sub- 
stitutions from  the  Ordinance  of  August,  1747  (sec- 
tions 1051-74,  Civil  Code).  Some  of  these  old  provisions 
have  been  taken  over  almost  or  quite  word  for  word 
(e.g.  sections  931,  944-6,  960-6,  976-9).  Although 
their  somewhat  antiquated  diction  detracts  in  no  way 
from  their  clearness,  yet  they  exhibit  plain  traces  of 
their  age,  and  when  one  compares  them  with  those  pass- 
ages drawn  personally  by  the  same  draftsman,  one 
notices  in  the  latter  a  form  more  easily  written  and  more 
sure  of  itself. 

The  legislative  style  which  can  properly  be  called 
modern  and  is  distinguished  also  on  account  of  the 
simplicity  of  the  concepts  and  the  conciseness  of  the 
terms,  appears  already  fully  developed  in  the  statutes 
passed  during  the  Revolution.  I  could  not  say  whether 
the  Civil  Code,  looked  at  merely  as  a  statute  and  dis- 
regarding the  fact  that  it  is  codification,  shows  an 
appreciable  progress  over  these.  One  might  even  say 
that,  as  an  example,  the  Act  of  the  eleventh  Brumaire 
of  the  Year  VII,  not  only  in  substance,  but  even  as  to 
form,  is  rather  better  than  otherwise,  compared  to 
the  corresponding  provisions  in  the  title  of  the  Code 
Napoleon  relating  to  liens  and  mortgages.  In  other 
words,  the  legislative  technic  of  modern  French  law, 
which  seems  to  have  reached  its  highest  point  of  develop- 
ment in  the  Civil  Code,  may  be  said  to  date  from  the 
Revolutionary  era. 

Aside,  however,  from  earlier  legislative  acts,  books  of 
customs,  royal  ordinances,  etc.,  may  one  not  find  a  higher 
and  more  general  foundation  to  explain  the  evenness 
and  uniform  excellence  of  that  technic? 

Assuredly,  the  works  of  certain  great  lawyers  of  the 
last  period  of  the  Monarchy,  especially  those  of  Domat, 
d'Aguesseau,  and  Pothier,  which  may  be  said  to 


520  GENY:   TECHNIC  OF  CODES      [CH.XH 

represent  the  classical  spirit  of  French  jurisprudence,  could 
not  but  do  their  share  in  the  evolution  of  that  legislative 
technic  which  became  a  definite  quality  of  France  to- 
ward the  end  of  the  1700s.  Not  only  did  the  authors 
of  the  Civil  Code  find  the  formulation  of  certain 
provisions  all  ready-made  in  the  judicial  opinions  of 
Pothier,  but  one  may  well  say  that  the  lucidity  of  that 
great  jurist,  with  his  eminently  popular,  simple,  clear-cut 
style  that  has  rid  itself  of  all  useless  scientific  ballast, 
has  to  a  great  extent  entered  into  their  own  work. 
Yet  I  do  not  believe  that  this  undeniable  influence  of  a 
literature  which  is  by  its  very  purpose  foreign  to  every 
specifically  legislative  conception,  can  suffice  to  explain 
the  distinctly  individual  character  possessed  by  our 
modern  statutes  and  particularly  exhibited  in  the  Code 
Napoleon. 

I  am  rather  led  to  suspect  here  an  influence  emanating 
from  the  side  of  philosophy,  and  incline  to  see  therein 
especially  the  effect  of  the  master-mind  of  Montesquieu. 
For  the  "Esprit  des  Lois"  did  not  merely  trace  the  funda- 
mental nature  of  positive  law,  in  accordance  with  the 
principles  set  forth  in  so  unforgettable  a  manner  at  the 
end  of  chapter  iii  of  the  first  book.  Not  to  speak  of  the 
discussion  by  which  Montesquieu  showed  how  to  weld 
simplicity  of  law  and  rigidity  of  legislative  principles 
into  harmony  with  the  varying  characters  of  differing 
forms  of  government  (book  iv,  chapters  i  and  iii) ,  he  also 
devoted  a  chapter,  accurate  notwithstanding  its  brevity, 
to  "matters  to  observe  in  the  drafting  of  laws"  (chapter 
xvi  of  book  xxix).  Still  more,  this  chapter,  which  is 
addressed,  not  without  a  trace  of  irony,  to  "those  who 
have  a  mind  broad  enough  to  enable  them  to  give  laws 
to  their  own  nation,  or  to  a  foreign  one,"  does  not  simply 
contain  recommendations  of  a  technical  order.  Towards 
the  end,  he  adds  several  remarks  tending  to  show  the 


§7]  HISTORICAL  SOURCES  521 

connection  there  is  between  the  provisions  of  the  law  and 
the  nature  of  things  itself,  to  which  above  all  other 
'considerations  it  ought  to  correspond.  Principally, 
however,  he  gives  us  a  number  of  "observations  on  the 
manner  of  making  statutes"  which  are  of  such  a  char- 
acter that  we  cannot  pass  them  by  in  discussing  the  sub- 
ject in  which  we  are  interested  at  present. 

Apart  from  the  enlightening  and  clear  "illustrations," 
these  counsels  regarding  the  technic  of  legislation  read  as 
follows,  in  Montesquieu's  own  words: 

The  style  of  statutes  should  be  concise. 

It  ought  to  be  simple;  a  direct  expression  is  always  more  easily 
understood  than  an  indirect  one. 

It  is  essential  that  the  words  used  in  a  statute  should  suggest 
the  same  ideas  in  all  men. 

After  an  idea  has  once  been  definitely  expressed  in  a  statute,  it 
should  not  thereafter  be  referred  to  in  vague  terms. 

In  a  statute,  one  must  reason  from  realities  to  realities,  and  not 
from  a  reality  to  a  metaphor,  or  from  a  metaphor  to  a  reality. 

Statutes  must  not  be  subtle;  they  are  intended  for  people  of  aver- 
age power  of  understanding;  they  are  not  a  logical  trick,  but  rather 
to  be  compared  to  the  simple  reason  of  a  father  of  a  family. 

When  a  statute  does  not  need  exceptions,  limitations,  and  qualifi- 
cations, these  ought  not  to  be  inserted;  such  details  will  create  the 
need  for  new  details. 

Farther  on,  where  he  says  that  "when  the  reason  for 
a  statute  is  inserted  therein,  that  reason  ought  to  be 
adequate,"  it  would  seem  that  Montesquieu  intends  to 
express  a  general  opinion  opposed  to  the  use  of  preambles 
in  the  text  of  a  statute. 

If  one  uses  the  term  "legislative  technic"  in  a  some- 
what broader  sense,  the  following  also  may  be  quoted 
here :  "As  regards  presumptions,  the  presumptions  estab- 
lished by  a  statute  should  be  valued  more  highly  than 
those  of  a  man;  where  the  court  indulges  in  presump- 
tions, the  judgment  becomes  arbitrary ;  where  the  statute 


522  GENY:  TECHNIC  OF  CODES      [CH.XH 

establishes  a  presumption,  it  gives  to  the  courts  a  fixed 
rule." 

These  precepts  which  are  assuredly  wise  but  just  a 
little  too  general,  seem  to  have  been  all  the  draftsmen 
of  the  Civil  Code  needed.  To  show  how  little  they 
troubled  themselves  about  a  more  closely  reasoned 
theory  of  legislative  technic,  one  needs  but  look  for  the 
hardly  perceptible  traces  of  the  thought  they  gave  to 
this  matter  to  be  found  in  the  various  works  from  which 
the  final  Code  issued  at  last. 

§  8.  The  Preliminary  Drafts  of  the  French  Civil  Code. 
The  idea  of  a  Code  that  should  mold  into  harmony 
and  render  uniform  the  civil  law  of  France  is  met  with 
in  definite  form  from  the  very  beginnings  of  the  Revolu- 
tion. In  its  session  of  July  5,  1790,  the  Constituent 
Assembly  passed  a  resolution  to  the  effect  that  "the  civil 
law  shall  be  revised  and  reformed  by  the  legislators  and  a 
general  code  of  simple,  clear,  and  constitutional  laws  be 
adopted."  (Comp.  Constitution  of  1791,  Title  I,  towards 
the  end.  See  also  Constitution  of  1793,  section  85.)  This 
proposition  was  not  lost  sight  of  by  any  of  the  Revolu- 
tionary assemblies,  each  of  which  proved  its  desire  to 
approach  the  task  in  a  methodical  manner  by  appointing 
some  committee  composed  of  its  own  members  for  that 
purpose:  the  committee  on  jurisprudence  in  the  Consti- 
tutional Assembly,  the  committee  on  civil  and  criminal 
legislation  in  the  Legislative  Assembly,  the  committee 
on  legislation  in  the  Convention.  Later,  the  Council  of 
Five  Hundred  had  its  commission  for  the  classification 
of  laws,  for  which  the  section  for  legislation,  the  Civil 
Code  and  the  police  was  presently  substituted,  while  the 
Council  of  Ancients  had  a  section  for  the  Civil  Code. 
Yet  all  these  assemblies  were  so  taken  up  with  political 
difficulties  that  the  best  they  could  do  was  to  prepare, 
principally  by  means  of  partial  reforms,  for  the  task  they 


§8]  THE  EARLIER  DRAFTS  523 

had  proposed  to  themselves.  Moreover,  we  are  too 
scantily  informed  regarding  the  precise  manner  in  which 
the  most  important  statutes  of  this  period  were  worked 
out,  to  draw  therefrom  definite  inferences  concerning 
the  technical  methods  they  more  or  less  consciously 
employed  in  their  work. 

We  are  able,  however,  to  gather  some  evidence, 
still  meager  enough,  by  examining  the  bills  for  a  Civil 
Code  proper  which  were  prepared  under  the  Convention, 
the  Directory,  and  the  Provisional  Consular  Commission 
of  the  Year  VIII.  There  are  three  drafts  of  an  entire 
code  by  Cambaceres,  and  another  incomplete  one  by 
Jacqueminot.  The  fact  that  these  bills  were  caused  to 
be  drawn  is  sufficient  to  show  that  the  proper  scope  of 
such  a  code  was  by  that  time  well  understood,  and  that 
the  matters  which  ought  to  be  included  therein  were 
easily  separated  from  those  which  more  properly  could 
be  treated  in  separate  statutes.  More  than  that,  the 
first  attempts  already  show  the  principal  outlines  of  the 
future  work,  and  the  various  subdivisions  are  already 
firmly  established. 

In  addition  to  these  general  impressions,  we  find  in 
the  reports  of  Cambaceres  on  his  successive  bills  a  number 
of  observations  on  more  specific  points  of  technic.  Thus, 
in  introducing  his  first  bill  in  the  Convention,  he  insists 
on  the  necessity  for  a  small  number  of  laws  with  very 
clear  provisions,  and  intimates  that  this  double  "desider- 
atum" may  be  obtained  by  means  of  productive  princi- 
ples and  their  unfolding  in  such  a  maner  as  to  leave  room 
for  but  few  questions  to  arise.  The  same  idea  is  again 
found  in  his  speech  in  support  of  his  third  bill,  before  the 
Council  of  Five  Hundred.  It  seems  that  his  idea  did 
not  fail  to  awaken  an  echo  in  the  Commission  for  the 
Classification  of  Laws.  At  the  same  time  Cambaceres 
maintained  that  he  desired  to  banish  from  his  work  the 


524  GENY:   TECHNIC  OF  CODES      [CH.XII 

systematic  spirit  of  scholasticism  and  to  follow  nothing 
but  nature.  Accordingly,  in  the  report  on  the  third 
bill,  he  restricts  the  business  of  the  legislator  to  "dispos- 
ing, arranging,  and  combining  the  social  elements." 
However,  if  one  studies  the  text  of  Cambaceres'  bills 
with  a  view  to  analyzing  their  effective  technical  form, 
one  cannot  help  coming  to  the  conclusion  that  under  all 
the  limpidity  and  ease  of  his  style  one  has  to  deal  with 
a  mind  with  an  essentially  systematizing  inclination. 
This  shows  itself  especially  in  the  two  bills  introduced 
in  the  Convention,  and  with  particular  exuberance  in 
the  first  one,  which  bristles  with  definitions,  reasons  for 
legal  provisions,  illustrations  for  the  application  of  such 
provisions,  and  other  doctrinal  statements,  so  as  to  create 
the  impression  that  one  is  reading  a  legal  treatise  put  into 
the  form  of  statutory  sections.  This  impression  becomes 
a  little  less  distinct  when  one  reads  the  third  bill 
drawn  by  Cambac6res,  where  the  practical  point  of  view 
becomes  more  pronounced,  although  no  very  striking 
difference  of  the  technical  treatment  can  be  observed 
even  there.  The  synopsis  of  the  report  submitted  with  it 
to  the  Council  of  Five  Hundred  adds  nothing  to  the 
stock  of  methodological  considerations  except  that  the 
various  portions  were  put  together  and  that  the  idea  was 
suggested  of  first  adopting  an  outline  of  the  bases  on 
which  the  new  legislation  was  to  be  built. 

So  far  as  it  goes,  the  Jacqueminot  bill  foreshadows 
still  more  closely  the  future  Civil  Code,  although  it  does 
not  show  the  same  firm  hand  in  drafting  and  editing  as 
the  latter. 

Presently,  the  resolution  of  the  24th  Thermidor  of  the 
Year  VIII  established  a  definite  plan  according  to  which 
the  final  work  was  to  proceed,  and  outlined  clearly  the 
order  in  which  the  various  subjects  to  be  included  were 
to  be  arranged. 


§8]  THE  EARLIER  DRAFTS  525 

The  draft  of  the  Year  VIII,  in  the  form  in  which  it  came 
back  from  the  Commission  appointed  by  the  Govern- 
ment, recalls  the  Cambaceres  bills  by  its  didactic  char- 
acter, its  philosophical  rather  than  practical  tendencies, 
its  sometimes  rather  abstract  definitions,  and  its  minute 
classification.  It  seems  also  to  be  obsessed  by  the  desire 
for  completeness,  and  in  order  to  approach  this  ideal 
explanations  are  multiplied,  and  yet  the  positive  solutions 
of  questions  likely  to  arise  are  not  increased  thereby. 

Yet  this  draft,  which  was  no  doubt  of  necessity  ar- 
rived at  by  compromises  between  the  divergent  views  of 
the  different  members  of  the  Commission,  was  notably 
distinguished  by  the  preliminary  discussions  from  the 
pen  of  the  classic  and  judicious  Portalis  regarding  the 
technical  form  of  the  proposed  code.  Portalis  was  fully 
imbued  with  the  influence  of  the  "Esprit  des  Lois,"  yet 
ventured  on  proper  occasion  to  correct  ideas  that  were' 
not  well  worked  out  therein.  He  was  careful  never  to 
entertain  extreme  opinions,  and  kept  himself  willingly 
in  the  middle  between  speculation  and  mere  rule-of- 
thumb,  which  is  so  valuable  a  quality  of  the  French 
mind.  In  this  expose  of  the  principles  guiding  the  work, 
Portalis  enunciated  a  number  of  truths  which  could 
not  but  impress  everybody  by  their  simplicity  and  even 
self-evident  appearance.  In  default  of  very  definite 
outlines  and  a  clearly  predetermined  scheme,  these  rules 
were  sufficient  to  give  to  the  work  of  drafting  a  general 
direction,  corresponding  to  the  essential  needs  of  the 
moment,  and  yet  capable  of  adapting  itself  to  the  inevit- 
able modifications  required  in  the  future.  While  he 
points  out  the  dangers  of  an  excessive  simplification  of  the 
laws,  he  insists  still  more  on  the  point  that  the  legislator 
cannot  foresee  all  cases  that  will  arise.  He  draws  up  his 
program,  so  to  speak,  in  the  following  terms:  "The  office 
of  the  statute  is  to  fix  in  large  outline  the  general  rules  of 


526  GENY:  TECHNIC  OF  CODES      [CH.XII 

law;  to  establish  principles  that  will  be  fruitful  of  con- 
sequences, but  not  to  descend  into  the  detail  of  all 
questions  that  may  possibly  arise  on  each  subject. 
It  would  be  a  mistake  to  imagine  that  any  body  of  stat- 
utes can  foresee  all  possible  cases  and  be  at  the  same 
time  comprehensible  to  the  average  citizen."  Moreover, 
one  principal  purpose  of  the  author  of  this  famous 
"Discours"  is  to  separate  clearly  the  limited  sphere  of 
the  statute  from  the  almost  infinite  domain  which  must 
necessarily  be  left  to  the  labors  of  jurists  and  especially 
to  legal  science  with  its  multitude  of  distinctions  and 
adaptations.  From  all  this  results  the  following  striking 
conclusion : 

There  is  a  science  for  legislators,  as  there  is  one  for  judges.  One 
does  not  resemble  the  other.  The  science  of  the  legislator  seeks  to 
find  in  each  subject-matter  the  principles  most  favorable  to  the  public 
good.  The  science  of  the  courts  teaches  how  to  apply  these  princi- 
ples, to  let  them  branch  out,  to  extend  them,  in  a  wise  and  reason- 
able manner,  to  the  claims  of  the  parties,  to  study  the  spirit  of  the 
law  where  the  letter  would  kill,  and  not  to  expose  oneself  to  the 
danger  of  being  alternately  a  slave  and  a  rebel,  or  to  disobey  from 
a  spirit  of  servility. 

These  fundamental  principles  were  again  stated  by 
Portalis  in  a  more  condensed  form  in  the  two  explana- 
tory reports  which  he  appended  to  the  preliminary  title 
of  the  draft  Civil  Code,  and  also  in  the  "Discours,"  which 
he  published  on  the  Act  of  the  30th  Vent6se  of  the  Year 
VI 1 1 ,  by  which  the  Code  was  finally  enacted.  They  seem 
to  be  the  key  which  unlocks  the  spirit  of  the  entire  work, 
so  far  as  the  technical  side  is  concerned.  It  does  not 
appear  that  the  observations  on  the  bill,  made  by  the 
various  judicial  bodies,  pointed  out  anything  particu- 
larly new  in  this  regard,  although  they  did  show  a  num- 
ber of  omissions  and  inaccuracies.  As  far  as  the  tech- 
nical side  goes,  they  merely  suggested  a  few  amendments, 


§8]  THE  EARLIER  DRAFTS  527 

all  in  the  direction  of  more  practical  provisions.  In  the 
somewhat  spirited  discussions  on  the  first  bill,  the  future 
preliminary  title  of  the  Code,  there  were  some  exchanges 
of  opinions  regarding  the  technical  side,  on  the  part  of  the 
orators  in  the  Tribunate,  that  were  interesting  in  them- 
selves; but  it  is  difficult  to  believe  that  these  views, 
which  were  often  more  impassioned  than  judicious,  and 
generally  inspired  by  an  impracticable  radicalism  that 
reminds  one  of  the  spirit  dominating  the  Convention, 
could  exercise  any  influence  on  the  progress  of  the  work 
at  all  comparable  to  the  prestige  of  Portalis. 

After  all,  we  lack  definite  evidence  to  determine  be- 
yond doubt  who  it  was  that  is  responsible,  to  the  greatest 
extent,  for  the  final  form  of  the  work.  Seeing,  however, 
from  the  journal  of  the  Council  of  State,  how  frequently 
the  passages  that  had  been  criticized  in  the  sessions  of 
the  Council  were  referred  back  to  the  legislative  section 
to  be  redrawn,  and  in  the  absence  of  all  documentary 
evidence  regarding  the  proceedings  of  that  section,  I  am 
tempted  to  venture  the  guess  that  this  section,  probably 
under  the  predominating  influence  of  Portalis,  had  more 
than  any  other  body  to  do  with  putting  the  bill  into  its 
final  shape. 

However  that  may  be,  the  French  Civil  Code,  in  the 
form  in  which  it  was  adopted  by  the  decisive  votes 
of  the  Legislative  Body,  exhibits  as  a  whole  a  technical 
form  peculiar  to  itself  and,  if  not  entirely  new,  yet 
bearing  the  stamp  of  originality.  Although  it  may  not 
be  possible  to  describe  this  form  in  a  few  ready-made 
phrases,  yet  it  will  be  feasible  to  point  out  a  few  of  its 
most  salient  characteristics. 

§  9.  Characteristics  of  the  French  Code  of  1804.  To 
give  an  account  of  these  characteristics  let  us  look  at 
the  work  itself  such  as  it  came  into  being  by  the  Act  of 
the  30th  Vent6se,  Year  XII. 


528  GENY:  TECHNIC  OF  CODES      [Cn.XII 

First  of  all,  I  do  not  believe  that,  in  spite  of  a  few 
imperfections  of  detail,  anybody  would  deny  that  it 
possesses  what  might  be  called  the  literary  qualities 
of  a  legislative  act  strictly  adapted  to  its  purpose,  and 
filled  with  those  great  classical  characteristics:  unity, 
conciseness,  lucidity.  Nor  will  anybody  fail  to  recognize 
in  it  the  merit  of  having  found,  although  it  was  the  first 
work  of  its  kind  and  had  no  authorized  model  to  follow, 
the  general  formula  for  a  modern  code,  in  harmony 
with  the  political  unity  of  the  country,  and  at  the  same 
time  adapted  to  the  needs  of  modern  civilization.  By 
virtue  of  the  Act  of  the  30th  Ventose  of  the  Year  XII, 
the  law  of  France  was  seen  duly  set  out,  cleared  of  almost 
all  foreign  matter,  put  into  definite  rules  as  a  whole 
if  not  in  all  its  parts,  and  condensed  into  an  easily 
followed  analytical  order  of  books,  titles,  chapters, 
sections,  and  paragraphs.  These  form  a  single  series 
of  elementary  legal  provisions  possessing  each  an  inde- 
pendent individuality,  complete  in  itself,  with  com- 
paratively few  references  from  one  section  to  another. 
As  to  the  arrangement  of  the  grand  divisions,  that  may 
be  far  from  satisfactory  to  the  scientific  notions  of  the 
present  day,  and  perhaps  it  may  be  difficult  to  find  in 
it  any  well  thought-out  system  at  all,  but  it  has  at 
least  the  advantage  of  distributing  the  subject-matter 
of  the  law  in  large,  coherent  divisions  calculated  to  avoid 
confusion  and  minimize  the  danger  of  repetition,  and 
it  justifies  itself  by  giving  satisfaction,  on  the  whole, 
to  the  mass  of  practitioners. 

Regarding  the  general  form  of  their  work,  one  may  say 
that  the  authors  of  the  Civil  Code  of  1804  succeeded 
better  than  any  of  their  predecessors  in  giving  to  each 
provision  the  form  of  a  single,  practical  command,  cut 
loose  from  all  merely  theoretical  considerations.  They 
have  followed  to  the  letter  the  precept  of  L'Hospital, 


§9]  THE  CODE  OF  1804  529 

cited  by  the  court  of  appeals  of  Lyon  in  its  opinion  on 
the  bill:  "The  law  commands;  its  business  is  not  to 
instruct;  and  it  has  no  need  of  trying  to  convince." 

When  we  proceed  to  a  more  detailed  scrutiny  of  the 
legislative  style  of  the  Code  Napoleon,  we  may  state 
first  of  all  that  it  holds  a  prudent  middle  course  between 
mere  dry  abstractions  and  the  delusive  attempt  at  cover- 
ing all  imaginable  cases,  both  of  which  faults  together 
produced  such  a  strangely  confusing  result  in  the  "Allge- 
meines  Landrecht"  of  1794,  in  Prussia,  and  are  found, 
though  in  a  less  degree,  also  in  the  Austrian  Civil  Code 
of  1811.  In  the  Civil  Code  of  1804,  generalizations 
are  few  and  cautious.  Concrete  applications  are  found 
more  often  than  ideas.  One  can  find  but  a  few  provisions 
alluding  to  fictions  or  theoretical  conceptions  (see  e.g. 
sections  739  and  883),  and  then  merely  for  the  purpose 
of  giving  an  explicit  account  of  their  consequences. 
Almost  always  the  practical  working  of  legal  institutions 
is  kept  in  view  and  regulated  in  a  simple  manner  from 
the  standpoint  of  their  most  common  features,  its 
provisions  refer  to  those  possible  cases  which  are  most 
likely  to  arise.  In  a  word,  it  seems  to  have  been  the 
purpose  of  the  authors  of  our  Code  to  provide  for  those 
difficulties  which  they  most  often  encountered  in  their 
own  experience  as  practitioners,  in  a  language  as  far 
as  possible  that  all  can  understand,  and  without  under- 
taking to  state  a  plenitude  of  rules  to  prevent  any  possible 
surprises  in  future. 

It  is,  moreover,  very  interesting  to  observe  the  variety 
of  ways  in  which  they  arrive  at  their  object.  Most 
often  they  assume  that  the  nature  of  a  legal  institution 
is  known  and  restrict  themselves  to  setting  forth  the  legal 
consequences  arising  from  its  intrinsic  nature  or  some 
accidental  variation.  Sometimes  they  resort  to  defini- 
tion when  that  becomes  necessary  in  order  to  make 


530  GEN Y :  TECHNIC  OF  CODES    -[CH.XII 

clear  the  legal  nature  of  some  state  of  facts.  Occa- 
sionally they  set  out  some  theoretical  conception, 
when  that  is  necessary  in  order  to  elucidate  certain 
essential  characteristics  of  an  institution.  It  happens 
also  that  they  give  but  an  abbreviated  definition  or 
even  allow  it  to  be  merely  implied,  when  the  specific 
points  to  be  regulated  by  that  particular  provision 
allow  of  such  treatment.  In  one  case  (section  686)  an 
apparently  permissive  provision  contains  within  itself 
the  whole  doctrine  of  restrictions  on  the  right  to  estab- 
lish servitudes.  In  another  place,  two  short  and  clear 
provisions  complementing  each  other  (sections  913  and 
920)  exhaust  all  important  matters  relating  to  our  law 
regarding  the  parts  of  an  inheritance  not  disposable 
by  will.  Elsewhere,  by  a  double  presumption  (sections 
2230,  2231,  2234),  they  throw  most  brilliant  light  on  the 
practical  working  of  the  law  regarding  possession.  In 
still  other  places,  very  simple  provisions  open  a  vista 
upon  a  whole  course  of  legal  developments.  And  in  all 
that  there  is  no  trace  of  any  painful  consideration  of 
the  means  by  which  the  desired  result  could  be  achieved, 
and  yet  the  result  is  nearly  always  obtained  in  the 
surest  manner  possible.  Is  not  this,  at  bottom,  the 
most  remarkable  technical  characteristic  of  the  French 
Civil  Code  of  1804,  and  also  the  characteristic  least 
susceptible  to  detailed  analysis,  that  without  a  con- 
sciously adopted  method,  without  even  any  visible 
effort  at  reasoned  and  methodical  editing,  thanks  to  the 
natural  knack  and  facile  skill  of  its  authors,  it  suc- 
ceeded in  clothing  the  most  profound  and  pregnant 
juridical  ideas  in  ordinary  and  popular  language,  and 
in  making  itself  both  beloved  by  the  layman  and  appre- 
ciated by  the  lawyer? 

Yet  this  happy  ease  of  style  could  not  but  have  a 
reverse  side.     The  defect  of  that  quality  is  a  certain 


§9]  THE  CODE  OF  1804  531 

vagueness  and  sometimes  ambiguity  of  terms,  so  that, 
for  want  of  all  definite  outline,  the  legal  commands  are 
sometimes  wavering  and  indecisive.  A  cursory  examina- 
tion of  the  various  preparatory  drafts  mentioned  above 
permits  one  to  suspect  that  the  draftsmen  never  troubled 
themselves  at  all  regarding  the  principles  of  conscious 
and  deliberate  choice  of  turns  of  phrase  and  expressions 
that  bordered  on  technical  terminology.  In  fact,  the 
various  amendments  of  the  text,  whether  suggested 
by  the  courts  that  were  consulted  on  the  bill  of  the  Year 
VIII,  or  inserted  as  a  result  of  discussions  in  the  Council 
of  State  or  the  opinions  of  the  Tribunate,  never  seem 
to  be  based  on  the  idea  of  a  homogeneous  vocabulary, 
deliberately  adopted  in  order  to  render  the  work  con- 
sistent and  exact  in  its  application.  It  would  be  more 
than  rash  to  assume  that  such  an  idea  had  underlain 
the  process  of  more  direct,  detailed,  and  minute  elabora- 
tion, of  which  we  have  no  evidence,  but  which  the  work 
must  have  undergone,  first  on  the  part  of  the  members 
of  the  Commission  of  the  Year  VIII,  to  some  extent 
also  in  the  legislative  section  of  the  Tribunate,  but  no 
doubt  particularly  in  the  legislative  section  of  the  Council 
of  State. 

To  be  sure,  if  one  looks  at  the  text  of  the  statute 
itself  with  an  eye  to  the  precision  of  its  diction,  it  is  far 
from  giving  the  impression  of  a  style  content  with  having 
come  near  to  what  it  intended  to  say,  or  with  choosing 
its  words  at  random.  One  will  find  a  certain  tendency 
to  avoid  a  number  of  terms  calculated  to  evoke  memories 
of  an  abhorred  past —  such  as  personal  servitude,  domin- 
ant and  servient  estates,  etc.  —  or  referring  to  institu- 
tions that  were  to  be  abolished :  disinheritance,  ground- 
rents.  We  shall  also  find  a  sort  of  natural  logic  in  the 
method  of  choosing  a  terminology  followed  instinctively 
by  the  legislator.  Undoubtedly,  and  one  may  say 


532  GENY:  TECHNIC  OF  CODES      [Cn.XII 

very  fortunately,  the  greater  part  of  the  technical 
terms  used  in  the  Civil  Code  already  had  a  clearly 
understood  traditional  meaning  which  was  simply 
accepted.  A  few  expressions,  regarding  the  meaning 
of  which  according  to  prior  usage  there  might  have 
been  some  doubt,  are  clearly  defined  by  the  con- 
text. .  .  .  Yet  this  is  not  always  done  successfully, 
as  for  instance  with  regard  to  the  interruption  of  prescrip- 
tion in  section  2257.  Sometimes  the  legislator  sees  fit 
to  fix  the  meaning  by  a  legal  definition  —  not  always 
in  the  most  exact  manner,  it  must  be  admitted. 

However,  by  the  side  of  those  certainly  very  valuable 
cases  where  the  authors  have  felt  rather  than  reasoned 
that  a  technical  definition  was  necessary,  their  lack  of  gen- 
eral principles  and  well-reasoned  views  regarding  the  need 
of  a  terminology  carefully  adapted  to  their  work  has 
produced  a  number  of  omissions  and  obscurities  that 
have  been  a  considerable  obstacle  to  those  later  called 
upon  to  interpret  the  code.  .  .  .  There  are  not 
a  few  words  and  phrases  that  bear  not  only  a  technical 
but  also  one  or  more  other  meanings,  and  in  most  such 
cases  the  text  of  the  statutes  does  not  enable  us  to  tell 
which  meaning  is  intended.  .  .  .  And  just  as  the 
French  legislator  has  not  always  maintained  a  certain 
and  unvarying  meaning  of  the  words  he  employs,  so  he 
has,  to  an  even  greater  extent,  failed  to  make  it  possible 
for  us  to  ascertain  the  precise  scope  of  his  provisions, 
or  even  that  of  the  legal  definitions  in  the  manner  in 
which  he  expresses  them.  It  is  not  our  intention 
here  to  present  even  in  the  most  general  outline  an 
analysis  of  the  diction  and  terminology  of  the  Civil 
Code  of  1804.  Such  an  undertaking,  which  would 
imply  as  a  preliminary  work  the  compiling  of  a  glossary 
analogous  to  that  which  Gradenwitz  compiled  with 
regard  to  the  German  Civil  Code  of  1896,  might 


§9]  THE  CODE  OF  1804  533 

well  tempt  some  day  some  lawyer  of  laborious  disposi- 
tion. That  would  go  far  beyond  the  bounds  of  our 
present  study.  Without  going  much  further  in  this 
matter,  it  would  seem  that  anybody  sufficiently  familiar 
with  this  principal  work  of  our  civil  legislation  will 
admit  in  his  heart  that  aside  from  a  comparatively 
limited  stock  of  concepts  which  were  already  clearly 
understood  and  which  they  succeeded  in  expressing  in 
particularly  appropriate  language,  the  authors  of  the 
Civil  Code  of  1804  have  hardly  been  successful  in  their 
attempt  to  utilize  popular  notions,  with  all  their  vague- 
ness and  the  inconsistencies  of  the  vernacular,  so  as  to 
formulate  and  express  ideas  which  are  absolutely  neces- 
sary for  the  orderly  arrangement  and  accurate  working 
of  the  legal  apparatus. 

One  may  realize  without  difficulty  that  this  easy- 
going technical  method  has  had  serious  consequences 
for  the  effective  influence  of  the  work,  if  one  but  con- 
siders, on  the  one  hand,  how  many  disputes  and  verbal 
controversies  have  arisen  regarding  the  interpretation 
of  the  text  of  our  Civil  Code,  and  on  the  other  hand 
that  in  most  cases  it  has  been  quite  impossible  to  gather 
from  the  expression  of  the  statute  itself  a  plain  concep- 
tion of  the  terminology  or  the  grammatical  construction. 

Does  it  follow  from  all  this,  however,  that  the  form 
of  our  Civil  Code  is  really  inferior?  Or,  speaking  more 
broadly,  what  is  the  practical  value  of  the  technic  of 
the  French  Civil  Code,  the  essential  characteristics  of 
which  we  have  described  above,  and  which  we  must 
contemplate  rather  as  a  whole  in  order  to  appreciate 
it  properly?  This  inquiry  we  still  have  before  us,  and 
in  entering  upon  it  we  approach  the  part  of  our  subject 
which  has  the  greatest  living  interest. 

§10.  The  Legislative  Technic  of  the  Future.  In  accord- 
ance with  the  nature  of  this  study,  which  is  to  be  critical 


534  GENY:  TECHNIC  OF  CODES      [Cn.XII 

and  practical  at  the  same  time,  I  shall  now  raise  the 
question  whether  and  in  what  respect  we  may  improve, 
in  view  of  the  actual  necessity  for  legislative  innovations 
especially  in  France,  the  legal  technic  which  has  come 
to  prevail  with  us  since  the  adoption  of  the  Code  of  1804, 
followed  by  later  French  statutes  as  nearly  as  they  could, 
but  never  seriously  improved  and  often  even  forgotten 
or  mutilated. 

Again,  in  this  connection,  I  shall  disregard  inten- 
tionally all  matters  of  purely  external  technic,  depending 
on  the  constitution  and  the  business  methods  of  the 
legislative  bodies.  I  shall  confine  myself  strictly  to 
internal  technic,  such  as  is  exhibited  in  the  contents  of 
the  statutory  provisions.  • 

Moreover,  I  do  not  intend  to  debate  the  expediency 
of  a  general  recasting  of  our  civil  codifications,  or  dis- 
cuss how  such  a  measure  could  best  be  undertaken.  On 
this  subject  I  shall  content  myself  with  remarking 
that  a  revision  of  our  Civil  Code  as  a  whole,  if  circum- 
stances should  render  it  expedient,  would  undoubtedly 
imply  that  the  arrangement  of  the  Code  'Napoleon, 
which  is  not  very  rational,  would  be  abandoned  and  a 
classification  substituted  therefor  which  would  be  more 
in  accord  with  the  organic  nature  of  law.  Such  a  classi- 
fication might  be  made  in  a  variety  of  ways,  as  is  shown 
by  the  recent  example  of  the  Swiss  Civil  Code,  if  com- 
pared to  the  more  didactic  type  of  the  German  Code. 
However,  I  want  to  disregard  everything  which  would 
enter  into  the  problem  only  if  the  Code  were  to  be  revised 
as  a  whole,  and  to  consider  critically  the  problem  of 
modern  legislative  technic  under  circumstances  which 
are  more  likely  to  happen,  that  is,  successive  partial 
revisions  of  our  statutory  law. 

§  11.  The  Need  for  a  Consciously  Thought-out  Tech- 
nic. However,  the  consideration  of  this  problem,  with 


§11]  A  CONSCIOUS  METHOD  535 

regard  to  the  Civil  Code  of  1804  and  the  sort  of  technic 
which  we  have  just  analyzed,  presents  features  of 
great  delicacy. 

First  of  all,  it  may  be  questioned  whether  there  exists 
any  technic  in  the  sense  in  which  we  have  defined  it 
above.3  For  it  will  be  necessary  to  decide  whether  it  is 
desirable,  or  even  useful,  that  the  legislator  should  have 
before  him,  consciously,  a  method  the  rules  of  which  he 
is  resolved  faithfully  to  follow ;  or  whether  it  may  not  be 
better  that  he  should  rely  simply  on  the  vague  prompt- 
ings of  instinct  or  the  indefinite  precepts  of  tradition, 
in  order  to  do  that  which  will  be  most  appropriate  to  the 
end  he  has  in  view.  The  Code  Napoleon  may  well  give 
us  pause  regarding  this  point.  For  its  authors,  who  were 
hardly  influenced  by  serious  consideration  of  technical 
questions,  still  succeeded  in  imparting  to  their  work, 
from  their  own  minds  and  the  traditions  of  the  past, 
all  the  elements  indispensable  to  make  it  a  living  suc- 
cess. Yet  I  do  not  believe  that  this  example  has  much 
value  as  an  argument  against  the  superiority  of  a  con- 
scious technical  method.  In  the  first  place,  I  believe 
lhat  the  authors  of  the  Code  of  1804  were,  on  account  of 
their  previous  training  and  the  circumstances  of  the 
time,  in  a  particularly  favorable  position  for  the  work 
of  codifying  our  civil  laws.  It  would  be  all  the  more 
presumptuous  to  count  on  equally  favorable  conditions 
at  the  present  day,  because  the  technical  excellencies  of 
the  Civil  Code  are  not  found,  at  least  to  the  same 
extent,  in  later  statutes.  In  the  next  place,  it  is  more 
than  probable  that  the  authors  of  the  Code  of  1804 
could  have  improved  their  work  materially,  by  working 
out  their  technic  in  advance  more  rationally  and  deli- 
cately, without  losing  any  of  its  essential  merits.  At 
any  rate,  we  could  hardly  venture  to  take  the  paradoxical 

3  See  §  3  supra. 


536  GENY:  TECHNIC  OF  CODES      [Cn.XII 

position  of  maintaining  that  there  is  a  positive  advantage 
in  letting  things  go  blindly  and  without  knowing  what 
one  is  doing,  and  of  denying  that  a  good  method  will 
be  an  additional  aid  to  superior  natural  qualifications. 
In  short,  the  attentive  consideration  of  the  matter  can 
do  no  harm,  and  consequently  the  fact  that  it  may  pos- 
sibly do  some  good  is  sufficient  justification  for  such 
attention. 

The  difficulty,  however,  which  apparently  has  thus  been 
overcome,  at  once  returns  in  more  embarrassing  form 
from  the  very  point  we  have  just  established.  If  we  admit 
that  the  superiority  of  a  conscious  and  reasoned  tech- 
nic  is  incontestable,  are  we  not,  by  this  very  reasoning, 
going  to  be  led  to  prefer  an  easy,  popular,  spontaneous 
diction  to  a  text  of  scholarly  and  detailed  elaboration; 
in  other  words,  shall  we  not  be  compelled  to  recog- 
nize as  a  special  merit  of  any  statute  a  certain  amount 
of  vagueness  in  terminology,  an  easy  flow  of  diction,  and 
generally  a  natural  and  spontaneous  form  as  compared 
to  the  rigid  and  artificial  manner  of  expression  inherent 
in  the  proper  notion  of  technic?  Here  is  the  crucial 
point  of  the  question.  And  here  the  arguments  drawn 
from  the  example  of  our  Civil  Code  and  the  experience 
we  have  had  with  it  will  gather  all  its  force.  For  many, 
even  though  agreeing  that  the  French  legislators  of  1804 
might  and  even  ought  to  have  reasoned  out  their  technic 
more  than  they  did,  may  yet  assert  that  no  matter  how 
much  attention  they  might  have  given  to  the  subject, 
one  could  hardly  demand  from  their  efforts  in  this  respect 
better  results  than  as  a  matter  of  fact  they  have  obtained. 
It  is  practically  admitted  that  the  greatest,  or  at  least 
the  most  widely  recognized,  progress  that  has  been  made 
in  French  law  during  the  1800s  has  been  achieved 
by  means  of  interpretation  of  the  Codes,  and  more 
particularly  the  Civil  Code,  principally  through  the 


§11]  A  CONSCIOUS  METHOD  537 

fertile  and  sustained  influence  of  judicial  decisions. 
The  courts,  however,  could  not  have  done  their  best 
work  and  built  up  their  most  original  legal  structures 
except  on  the  basis  of  statutory  provisions  that  were  a 
trifle  loosely  put  together,  with  an  elastic  arrangement 
and  flexible  clauses,  constituting  a  code  that  was  not, 
at  least  if  one  may  say  so,  nailed  down  and  stereotyped 
in  the  inflexible  armor  of  a  close,  rigid,  and  narrow  tech- 
nic.  In  fact,  this  is  the  most  conspicuous  merit  which 
foreigners  accord  to  the  technic,  such  as  it  is,  of  the  French 
Civil  Code.  They  say  that  by  virtue  of  its  malleability, 
its  indefiniteness,  and,  to  speak  candidly,  its  lack  of 
finish,  it  opened  the  way  for  an  independent  develop- 
ment of  the  law,  which  has  taken  place  in  the  most 
fortunate  manner  thanks  to  the  incessant  and  wisely 
progressive  work  of  the  courts,  assisted,  although  per- 
haps a  little  hesitatingly,  'by  theoretical  science. 

I  do  not  mean  to  forget  that  such  views  disturb, 
nay  even  embarrass  us  a  little  in  the  consideration  of  our 
subject-matter.  At  any  rate,  they  appear  serious  enough 
not  to  let  themselves  be  flouted.  We  must  rather  try 
to  find,  sincerely  and  without  prejudice,  how  much  truth 
and  what  useful  information  we  may  gather  from  them. 
Even  then,  however,  I  believe  that  we  must  take  care 
not  to  exaggerate  their  importance,  or  to  admit  from  the 
start  that  they  suffice  to  make  useless  our  search  for  the 
technical  means  of  attaining  greater  precision  of  legis- 
lation. Foreigners  who  have  taken  pains  to  render  full 
and  exact  justice  to  our  Civil  Code  have  not  failed  to 
observe  that  its  loose  technic,  while  it  may  have  favored 
the  further  development  of  French  law,  is  nevertheless 
a  truly  weak  point.  They  add  that  it  would  not  have  been 
possible  to  amend  and  transform  it,  mainly  in  the  right 
direction,  if  it  had  not  been  for  a  close  similarity  of  points 
of  view  existing  between  the  legislators  and  the  lawyers 


538  GENY:  TECHNIC  OF  CODES      [Cn.XII 

whose  duty  it  was  to  put  the  work  of  the  former  into 
actual  effect. 

At  bottom,  therefore,  it  seems  that  the  credit  for  the 
progress  our  law  has  made  since  the  day  when  the  Civil 
Code  went  into  effect  is  due  mainly  to  the  perfect  work 
of  our  judiciary.  That  perfection  has  been  attained,  in 
part  by  the  innate  and  traditional  qualities  of  the  judges, 
in  part  by  the  excellent  organization  of  our  courts,  more 
particularly,  however,  by  the  definite  and  decisive  part 
which  the  Court  of  Cassation  plays  in  our  system. 
It  is  true  that  the  work  of  our  highest  court,  which  since 
its  inception  has  consisted  essentially  in  maintaining  the 
integrity  of  the  statutes,  could  not,  it  seems,  have  pro- 
duced the  fertile  results  it  has,  especially  with  regard  to 
new  principles  evolved  judicially,  if  it  had  not  been  able 
to  wrork  on  a  pliable  text,  the  interpretation  of  which  left 
room  for  free  growth  and  a  happy  spontaneity  in  con- 
struction. Yet  if  we  look  more  closely  we  shall  have  no 
difficulty  in  discovering,  I  believe,  that  by  an  instinctive 
and  methodical  tendency  the  Court  of  Cassation  at  an 
early  day,  certainly  since  the  close  of  the  first  third  of 
the  1800s,  assumed  a  sort  of  sovereign  power  in  the  realm 
of  legal  interpretation.  In  this  it  did  no  more  than  what 
was  plainly  and  profoundly  demanded  by  the  essential 
reason  for  its  existence,  and  was  moreover  assisted  by  a 
parallel  tendency  in  legislation.  This  spirit  of  sovereign 
authority  enabled  the  Court  of  Cassation  to  guide  effect- 
ually the  gradual  development  of  our  French  law,  without 
regard  to  mere  formal  considerations  and  without  being 
obliged  to  yield  to  obstacles  arising  from  a  rigid  precision 
in  the  text  of  the  statutes.  We  may  go  farther  than  that, 
however.  There  is  nothing  to  prove  absolutely  that  our 
legal  evolution  would  not  have  proceeded  with  quite  as 
much  continuity  and  perhaps  with  more  methodical  reg- 
ularity under  cover  of  a  more  explicit  legal  technic. 


§11]  A  CONSCIOUS  METHOD   .  539 

However  that  may  be,  the  gains  derived  from  our 
judicial  development  have  at  present  become  firmly 
incorporated  in  the  law.  There  are  certain  indications 
that  we  are  approaching  a  time  when  the  subjective 
freedom  of  the  courts  will  have  to  be  restrained  by 
a  more  accurate  draftsmanship,  to  an  extent  which 
will  presently  be  defined.  At  any  rate  I  think  that 
all  will  agree  that  it  would  be  wise  to  adopt  a  line  of 
conduct  in  this  respect  which  is  definitely  drawn  in 
accordance  with  the  needs  of  present  social  conditions. 
For  these  require  more  than  at  any  former  period  firm- 
ness and  certainty  in  all  legal  relations.  Thinking  of  the 
future,  we  ought  to  inquire  into  this  question  of  legisla- 
tive technic  with  the  aid  of  all  the  data  to  be  had  in  the 
present,  and  without  rejecting  what  our  past  experience 
with  the  Civil  Code  may  have  to  teach  us. 

Now  recent  codifications  in  Europe  present  to  us  two 
interesting  types:  the  "Biirgerliches  Gesetzbuch  fur 
das  Deutsche  Reich,"  adopted  in  1896,  and  the  draft  of 
the  Swiss  Civil  Code,  which  was  published  in  its  most 
recent  form  by  the  Federal  Council  on  May  28,  1904, 
and  is  the  direct  outgrowth  of  the  preliminary  draft 
completed  in  1900  by  Professor  E.  Huber.4  It  will  be  well 
to  analyze  as  closely  as  possible  in  what  respects  these 
two  works  represent  different  systems  of  legislative  tech- 
nic, while  they  are  united  by  a  general  spirit  common  to 
both.  From  such  an  inquiry  we  may  be  able  to  draw 
information  that  will  be  useful  to  us  if  at  any  time  the 
French  laws  are  to  be  reformed. 

§  12.  The  Technic  of  the  German  Civil  Code.  The 
internal  technic  of  the  German  Civil  Code  is  not  apparent 
from  any  positive  provision  in  the  text  as  it  has  finally 

*  [The  Swiss  Civil  Code  of  1907  has  been  translated  into  English  by 
Robert  P.  Shick,  for  the  Comparative  Law  Bureau  of  the  American  Bar 
Association  (Boston  Book  Co.,  1915).  —  ED.] 


540  GENY:  TECHNIC  OF  CODES      [CH.XH 

become  law,  nor  is  it  set  forth,  "ex  professo,"  in  any 
official  document.  It  can  be  learned  only  from  an  atten- 
tive study  of  the  work,  and  for  this  purpose  it  is  useful 
to  compare  the  law  with  its  first  draft,  and  also  first 
of  all  to  determine  the  exact  scope  of  the  Code. 

The  German  legislators  of  1896  intended  to  supply, 
with  certain  intentional  and  limited  reservations,  a 
complete  statutory  system  of  positive  private  law. 
Undoubtedly,  by  striking  out  the  second  section  of  the 
original  draft,  they  left  room  for  the  existence  of  a  general 
customary  law  subsidiary  to  the  new  statute.  According 
to  the  most  widely  accepted  opinion,  however,  such 
customary  law  is  recognized  both  when  it  derogates 
from  the  statute  and  when  it  supplements  it,  and  the 
omission  of  that  section  amounts  to  nothing  more  than 
the  tacit  recognition  of  a  social  process  which  is  inevit- 
ably going  on,  and  which  the  legislator  may  at  most 
render  almost  entirely  superfluous  by  the  completeness 
of  his  own  work.  On  the  other  hand  it  seems  certain 
that,  while  the  provisions  of  section  1  of  the  first  draft, 
regarding  the  use  of  analogy,  have  been  held  useless  and 
even  dangerous,  it  has  nevertheless  been  the  intention  to 
base  all  further  growth  of  German  civil  law  on  the  inter- 
pretation of  the  new  Code.  Briefly,  the  authors  of  the 
"BiirgerlichesGesetzbuch"  of  1896  have  carefully  avoided 
the  attempt  of  the  "Allgemeines  Landrecht  fiir  die  Ko- 
niglich-Preussischen  Staaten"  of  1794,  to  cover  all  con- 
ceivable concrete  cases  by  detailed  specific  provisions,  but 
have  striven  to  comprise  in  their  general  rules  all  the 
relations  of  private  life  giving  occasion  for  legal  regula- 
tion. Such,  it  seems,  has  been  the  main  and  most  im- 
portant principle  of  their  technic.  Secondly,  they  have 
tried,  as  appears  especially  from  a  minute  comparison 
of  the  first  draft  with  the  law  itself,  with  deliberate 
intent  to  exclude  from  their  work  all  explanations  of 


§12]  THE  GERMAN  CODE  541 

principles,  conceptions,  or  theoretical  constructions  and 
all  purely  theoretical  definitions,  so  as  to  confine  them- 
selves to  strictly  positive  provisions  in  which  all  actual 
relations  are  comprised  and  subjected  to  the  necessary 
rules.  Finally,  the  means  of  accomplishing  this  double 
object  has  been  the  adoption  of  and  faithful  adherence  to 
an  ingeniously  constructed  body  of  formulas,  turns  of 
phrase,  and  specially  adapted  expressions.  This  con- 
stitutes properly  the  technic  of  this  legislative  work. 
Its  principal  features  I  intend  to  indicate  in  outline, 
while  for  the  elucidation  of  detail  and  for  the  numerous 
illustrations  or  exemplifications  I  shall  have  to  refer 
the  reader  to  the  most  approved  commentaries  on  the 
new  Code. 

1.  Although    the    grammatical    construction    of    the 
various  provisions  is  not  absolutely  uniform,  the  German 
legislator  of  1896  has  taken  care  to  produce  the  same 
legal  consequences  from  the  same  given  state  of  facts, 
directly  or  indirectly,  sometimes  by  repeating  the  same 
provision    and    sometimes    by    simple    references    (the 
latter  are  not  so  frequent  in  the  law  as  in  the  first  draft 
but  still  quite  numerous).     Thus  even  his  legal  defini- 
tions are  usually  implied  in  the  various  clauses  of  a  rule. 
The  legislative  text  is  built  up  according  to  rather  con- 
stantly recurring  forms  without  being  absolutely  stereo- 
typed. 

2.  Different  phrases  and  locutions,  conceived  so  as 
to  express  the  fundamental  nature  of  different  clauses 
in  most  cases  very  simply  and  unambiguously,  corres- 
pond commonly  if  not  invariably  to  the  nature  of  the 
various  clauses,   whether  imperative  and   absolute,   or 
merely  permissive,  or  simply  declaring  the  legislative 
character  of  the  provision  like  an  enacting  clause. 

3.  Although    the  burden   of  proof   can   usually   be 
determined  from  the  general  form  of  a  statute,  on  the 


542  GENY:  TECHNIC  OF  CODES      [Cn.XII 

principle  that  he  who  claims  the  benefit  of  a  legal  pro- 
vision must  show  that  its  conditions  have  been  fulfilled, 
the  German  Civil  Code  makes  this  matter  which  has  such 
great  practical  importance  still  more  clear  by  an  ingenious 
combination  of  clauses  which  tends  to  show  at  a  glance 
what  the  respective  position  of  the  parties  to  an  issue 
will  be  in  this  respect. 

4.  The  German  Civil  Code  represents  a  really  novel 
attempt  at  introducing  a  fixed  and  rigorous  terminology 
appropriate  to  the  modern  demand  for  extreme  precision 
in  legal  ideas.  Not  only  does  it  attribute  to  certain 
terms  a  clear  and  varying  meaning  by  actual  legal 
definitions  wherever  that  appears  indispensable;  but  it 
appears  that  the  greater  part  of  the  legal  terms  used, 
even  where  the  words  are  taken  from  everyday  speech, 
are  given  a  technical  meaning  and  are  so  to  speak  marked 
officially  as  technical  terms.  Nay,  it  would  not  be  too 
bold  to  say  that  a  technical  sense  belongs  to  all  the 
terms,  or  very  little  short  of  that,  used  in  the  "Biirger- 
liches  Gesetzbuch."  A  lawyer  who  has  made  a  particular 
study  of  this  very  original  feature  of  the  German  Civil 
Code,  Martin  Wolff,  has  asserted  as  an  actual  fact5 
that  this  code  "avoids  with  great  care  either  the  use 
of  several  words  for  the  same  thing,  or  one  and  the 
same  word  for  different  things."  Thus  the  German 
Civil  Code  shows  to  us  a  very  studied  attempt  to  create 
a  special  statutory  language,  with  the  purpose  in  view 
of  guaranteeing  to  practical  business  life  the  greatest 
certainty  of  the  law  that  can  possibly  be  expected  of 
any  codification. 

If  we  add  to  the  above  that  the  German  Code  also 
revises  the  rules  regarding  certain  technical  instrumen- 
talities of  the  law,  such  as  presumptions  and  fictions, 
for  which  in  addition  it  employs  appropriate  terms, 

*  In  Gold schmidt's  "Zeitschrift,"  vol.  51,  p.  599. 


§12]  THE  GERMAN  CODE  543 

we  shall  have  supplied  a  summary  but  sufficient  outline 
of  the  legislative  technic  it  originated. 

A  particularly  interesting  feature  of  this  form  of 
technic  is  that  there  is  no  tangible  trace  left  in  the  com- 
pact mass  of  the  published  preliminary  drafts  and  other 
documents  relating  to  the  Code,  to  show  that  there  was 
any  deliberate  discussion  regarding  this  matter,  although 
we  may  be  sure  that  it  was  not  hit  upon  unconsciously 
or  by  accident.  We  may  well  assume  that  the  perfectly 
homogeneous  form  of  the  Code  was  made  possible  by 
the  method  adopted  for  doing  the  work.  This  included 
both  individual  preparation  and  joint  discussion,  and 
this  plan  was  carried  out  most  judiciously  and  systematic- 
ally. There  seems  to  be  good  reason  to  assume  that 
the  most  characteristic  feature  of  the  work,  to  wit,  the 
adoption  and  consistent  employment  of  a  terminology 
previously  agreed  upon,  is  due  to  the  labors  of  the 
editorial  committees  forming  part  of  the  first  and  second 
Code  Commissions.  These  bodies,  which  may  be  com- 
pared to  the  legislative  section  of  the  French  Council 
of  State  of  1800-04,  worked  hand  in  hand  with  the  Com- 
missions having  charge  of  the  entire  task  and  were  in 
a  position  to  obtain  for  the  final  text  of  the  "Biir- 
gerliches  Gesetzbuch"  that  formal  unity,  syntactic  rigor, 
and  precision  of  language  which  are  so  characteristic  of 
this  code. 

Finally  we  should  state  that  the  German  Civil  Code 
shows  an  endeavor  which  has  not  remained  without 
fortunate  results,  to  get  rid  of  some  of  the  narrowly 
theoretical  character  of  the  first  draft,  and  has  become 
more  alive,  practical,  and  more  broadly  corresponding 
to  social  needs.  At  the  same  time  the  attempt  to 
include  in  its  provisions  all  the  legal  relations  of  private 
life  fully  and  with  certainty  has  by  no  means  been  given 
up.  Sometimes,  to  be  sure,  and  even  quite  frequently, 


544  GENY:  TECHNIC  OF  CODES      [Cn.XII 

the  German  legislator  leaves  to  the  judge  a  wide  discre- 
tion. This,  however,  must  be  a  well-informed  discretion, 
guided  by  ingeniously  devised  rules  which  themselves 
may  be  said  to  constitute  another  novel  feature  of  legis- 
lative technic.  On  the  whole,  the  "BiirgerlichesGesetz- 
buch"  of  1896  appears  to  us  as  a  code  of  the  kind  that 
delights  in  having  a  rule  for  everything,  with  a  tendency 
towards  generalizations  or  even  abstractions,  with  great 
uniformity  of  style,  and  an  almost  monotonously 
rigorous  terminology.  Its  technical  form  as  a  whole, 
considered  apart  from  the  aid  it  gives  to  interpretation, 
impresses  one  as  methodical,  unyielding,  and  consistently 
logical.  It  may  occasionally  make  one  feel  a  little  uncom- 
fortable, but  cannot  but  appeal  strongly  to  the  intellect. 

§  13.  The  New  Swiss  Civil  Code.  A  very  different 
sort  of  work,  in  this  respect,  is  the  new  Swiss  Civil  Code, 
the  draft  of  which  was  published  in  its  final  form  by  the 
message  of  the  Federal  Council  on  May  28,  1904. 

It  is  understood  that  the  draft  in  this  form  was  the 
direct  outcome  of  a  preliminary  draft  by  Professor 
Eugen  Huber,  whose  work  may  be  described  in  few  words 
as  "full,  simple,  and  popular."  The  same  qualities 
belong  likewise  to  the  draft  as  submitted  by  the  Federal 
Council.  In  it,  a  number  of  details  have  been  decidedly 
perfected  and  especially  a  number  of  provisions  have  been 
made  clearer  and  more  precise ;  but  the  general  features 
have  been  preserved,  especially  with  regard  to  the  prin- 
cipal technical  matters.  In  order  to  understand  the 
dominant  technical  characteristics  of  this  draft,  we  may 
turn  to  the  report  accompanying  the  preliminary  work, 
to  which  the  Message  of  May  28, 1904,  refers,  with  regard 
to  these  points,  while  it  makes  almost  no  observations 
of  its  own  about  them. 

The  learned  author  of  the  preliminary  draft  describes, 
in  the  introduction  to  his  report  and  under  the  title 


§13]  THE  SWISS  CODE  545 

"The  language  of  the  draft  and  its  arrangement,"  the 
broad  outlines  of  the  technical  form  which  he  intends  to 
give  to  his  work.  Some  of  these  principles  remind  one 
of  the  general  rules  which  the  German  legislator  followed 
in  1896.  He  draws  a  sharp  distinction  between  statutes 
and  theoretical  discussion  and  states  that  it  is  his  inten- 
tion to  formulate  rules  that  are  to  be  as  comprehensive 
and  synthetical  as  possible  and  yet  shall  be  intelligible  to 
everybody.  Notwithstanding  this,  after  laying  down  a 
number  of  general  rules  regarding  such  matters  as 
editorial  style,  length,  and  arrangement  of  chapters, 
references,  marginal  notes,  and  the  order  in  which  the 
various  subjects  are  taken  up,  the  author  expresses  his 
intention  of  employing  "a  conventional  and  more  or  less 
esoteric  language."  On  this  point  he  says  more  explic- 
itly: "So  far  as  the  requirements  of  language  permit 
this,  we  have  tried  always  to  express  by  the  same  terms 
ideas  that  are  repeated  several  times.  .  .  .  We 
have  also  tried  constantly  to  use  the  same  expression 
for  frequently  recurring  ideas."  Then  he  adds  that  the 
appearance  of  monotony  in  the  provisions  of  the  statute 
which  might  result  from  this  method  had  seemed  to  be  a 
lesser  evil  than  any  uncertainty  regarding  the  meaning 
of  the  law  itself. 

Yet  this  plan,  which  was  of  itself  moderate  in  form, 
was  still  further  modified.  It  is  stated  in  the  report  that 
notwithstanding  the  care  taken  to  make  the  terminology 
uniform  in  its  expression  of  the  legal  ideas  incorporated 
in  the  statute,  it  must  not  be  assumed  that  a  different 
form  of  expression  necessarily  always  implies  a  different 
sense.  The  author  of  the  preliminary  draft  declares 
explicitly  that  he  reserved  to  himself  "a  certain  latitude," 
and  that  he  had  not  undertaken  "to  distinguish  invari- 
ably by  the  choice  of  various  more  or  less  synonymous 
expressions,  as  for  instance  'may'  and  'shall,'  between 


546  GENY:   TECHNIC  OF  CODES      [CH.XII 

statutory  provisions  of  imperative  and  permissive 
character."  In  addition  to  these  important  reserves, 
which  suffice  to  show  that  the  Swiss  draft  does  not 
purport  to  follow  a  technical  language  as  rigorous  as  that 
of  the  German  Civil  Code,  the  report  claims  that  it  has 
attempted  to  avoid  abstractions,  and  even  generaliza- 
tions, whenever  principles  would  thereby  be  separated 
from  their  practical  applications,  even  where  this  had  to 
be  done  either  by  dividing  a  general  subject  or  by  making 
the  several  provisions  rather  detailed.  This  feature  is 
confirmed  by  the  Message  of  the  Federal  Council  of 
May  28,  1904. 

As  a  matter  of  fact,  in  both  the  first  and  second  drafts, 
one  cannot  help  noticing  a  striking  difference  of  structure 
as  compared  to  the  German  Code  of  1896.  The  same 
difference,  although  in  a  minor  degree,  was  noticeable 
in  the  federal  laws  on  civil  rights  (June  22,  1881)  and  on 
obligations  (June  10—14,  1881).  The  German  Code 
takes  a  firm  hold  of  the  various  states  of  fact  to  which  it 
is  to  apply  and  regulates  them  in  their  most  subtle  differ- 
ences, throwing  around  them  a  closely  woven  net  of 
provisions  that  supplement  and  modify  each  other,  and 
containing  a  multitude  of  exceptions,  reservations,  and 
mitigations.  The  Swiss  draft  generally  contents  itself 
with  establishing,  by  a  broad  and  elastic  provision,  the 
fundamental  character  to  be  given  by  the  statute  to 
some  legal  institution;  it  indicates  in  a  summary  way 
necessary  qualifications,  but  does  not  enter  into  the  de- 
tails of  the  working  of  the  institution.  The  Report  claims 
as  one  of  its  most  original  peculiarities  of  external  form 
that  "everything  is  stated  quite  briefly."  The  draft  of 
1904  may  perhaps  draw  the  outlines  a  little  more  strongly 
with  regard  to  certain  points  but  does  not  change  the 
general  style  of  the  original  in  any  important  respect. 
The  Message  of  May  28,  1904,  testifies,  quite  correctly, 


§13]  THE  SWISS  CODE  547 

to  the  fact  that  the  draft  does  not  offend  "against  the 
ideal  of  conciseness,  such  as  is  required  of  a  statute  to  be 
understood  by  the  people  in  general." 

This  intentional  and  calculated  disregard  of  technic, 
or  rather  this  new  "style"  of  technic,  which  distinguishes 
the  Swiss  draft  so  sharply  from  those  codes  that  give 
definite  rules  for  all  anticipated  cases,  makes  it  appear 
more  like  an  outline  of  legal  principles  than  a  body  of 
provisions  purporting  to  regulate  all  legal  relations.  It 
corresponds  to  a  conception  of  the  respective  functions 
of  legislature  and  judiciary  which  is  peculiar  to  recent 
legislation  in  the  Swiss  Confederacy,6 and  which  the  au- 
thor of  the  preliminary  draft  has  illustrated  in  a  striking 
manner. 

There  can  be  no  doubt  that  he  puts  the  statute  un- 
hesitatingly at  the  head  of  the  sources  of  positive  law 
and  concedes  to  it  complete  supremacy  within  the  legal 
field  it  intends  to  cover.  He  does  not,  however,  allow 
himself  to  be  deceived  for  a  single  moment  by  the  fiction 
of  a  written  law  covering  all  cases,  and  does  not  pretend 
that  he  can  supplement  the  deficiencies  of  the  statute 
by  artificial  devices  contrary  to  the  exigencies  of  prac- 
tical life.  On  the  contrary,  he  confesses,  even  with  a  bit 
of  complacency,  that  all  codified  statutes  are  at  bottom 
insufficient.  Not  only  does  he  maintain  the  authority 
of  federal  customs,  but  affirms  that  the  courts  properly 
exercise  power  to  provide  for  cases  which  the  statute  — 
frequently  with  conscious  intent — has  not  covered. 
From  this  point  of  view,  which  is  rather  the  opposite 
from  that  of  the  German  legislator,  but  which  is  all  the 
more  firmly  established  by  appearing  expressly  in  the 

6  [That  this  conception  is  not  a  purely  modern  development  in  Swit- 
zerland, but  is  an  inherited  tradition,  is  interestingly  shown  by  Pfen- 
ninger's  chapters  on  Swiss  Criminal  Law  in  the  "History  of  Continental 
Criminal  Law"  (Boston,  1916),  being  vol.  vi  of  the  Continental  Legal 
History  Series.  —  ED.] 


548  GENY:   TECHNIC  OF  CODES      [CH.XII 

text  of  sections  1  and  2  of  the  first  draft,  and  still  more 
plainly  in  sections  1  to  5  of  the  draft  of  1904,  the  inten- 
tional relaxation  of  legislative  technic  appears  like  an 
homage  rendered  to  the  reality  of  things,  and  the  best 
means  of  attaining  the  final  goal  of  positive  law. 

This  is,  moreover,  also  stated  in  the  Report  of 
Professor  Huber,  where  he  justifies  his  making  no  dis- 
tinction in  the  text  between  imperative  and  permissive  or 
directory  rules.  He  says :  '  'We  do  not  believe  it  would  be 
advantageous  if  the  legislature  deprived  the  courts  of  all 
discretion  in  recognizing  this  point.  The  interpretation 
may  vary,  during  the  existence  of  the  statute,  in  accord- 
ance with  the  opportunities  of  the  text  and  the  state  of 
public  conscience,  and  it  would  be  a  mistake  to  draw  a 
statute  in  such  a  way  as  to  make  it  impossible  for  the 
courts  to  follow  the  development  of  public  opinion 
without  a  change  of  the  text.  .  .  .  When  the  legis- 
lator intends  to  make  a  provision  absolutely  mandatory, 
he  should  say  so.  Where  he  fails  to  say  so,  the  question 
will  be  decided  in  accordance  with  the  spirit  of  the 
times."  In  a  more  general  way,  one  may  say  that  the 
authors  of  the  draft  of  the  Swiss  Civil  Code  had  a  par- 
ticularly large  conception  of  positive  law  when  they 
deemed  the  adoption  of  wide  and  elastic  outlines,  in  those 
statutory  rules  which  seemed  most  necessary  for  the  so- 
cial function  of  the  law,  the  best  method  for  making 
the  written  law  all  that  it  should  be. 

As  it  is  thus  characterized,  the  draft  of  a  Swiss  Civil 
Code  has  almost  the  appearance  of  being  simply  a 
more  perfect  form,  adapted  to  the  needs  of  the  present 
time,  of  legislative  technic,  the  germ  of  which  we  have 
been  able  to  discover  in  the  Code  Napoleon  as  we  have 
shown  above. 

However,  we  shall  come  still  nearer  to  the  truth  if, 
leaving  out  of  account  our  Civil  Code  of  1804  as  one  of 


§13]  THE  SWISS  CODE  549 

those  laws  which,  according  to  Crome,7were  the  natural 
product  of  our  grandfathers'  days  and  lacked  the  con- 
scious technic  of  modern  legislative  skill,  we  confine 
ourselves  to  a  comparison  of  contemporary  models. 
There  we  shall  see  that  the  German  draft  of  1888,  the 
Swiss  drafts  of  1900  and  1904,  and  the  "Burgerliches 
Gesetzbuch"  of  1896,  represent  so  many  different  types 
of  codification.  At  the  two  extremes  of  the  line  stand  the 
first  draft  of  the  German  Code  and  the  preliminary  draft 
of  Huber.  The  first-named  stands  for  a  strict,  stiff, 
systematic  technic,  attempting  to  place  the  entire  law 
on  a  statutory  bed  of  Procrustes.  The  other  represents, 
on  the  other  hand,  a  more  supple,  malleable,  elastic  form ; 
it  adopts  a  broader,  more  human  method,  and  one  may 
add,  shows  a  little  mistrust  of  the  abilities  of  the  legis- 
lature. 

§  14.  Merits  of  the  Two  Types  Compared.  May  one 
assume,  as  some  have  argued,  that  this  last  type  will 
be  the  form  in  which  codes  will  be  drawn  in  future?  The 
mere  fact  that  the  Swiss  drafts  are  the  most  recent 
would  undoubtedly  be  insufficient  to  prove  this  without 
exaggerating  the  importance  of  a  chronological  differ- 
ence of  a  few  years.  Even  if  that  difference  were  greater 
than  it  is,  the  question  of  date  by  itself  would  not  be 
enough  to  solve  a  problem  which  has  arisen  so  recently 
as  that  with  which  we  are  dealing.  Moreover,  the  temp- 
tation to  follow  blindly  a  course  of  evolution  may  be 
great,  but  it  is  deceptive  just  the  same  where  that 
evolution  itself  stands  in  need  of  enlightened  guidance. 
However,  it  is  asserted,  in  favor  of  the  theory  that  a 
technic  such  as  that  of  the  Swiss  original  draft  will  rec- 
ommend itself  generally  in  the  future,  that  it  seems  to 
correspond,  more  than  any  other,  "with  the  social  move- 
ment which  to-day  tends  more  and  more  to  penetrate 

'  In  his  "System  des  deutschen  biirgerlichen  Rechts,"  vol.  i,  p.  88. 


550  GENY:  TECHNIC  OF  CODES      [CH.XII 

the  whole  private  law."  Yet,  upon  closer  considera- 
tion,' I  fear  that  this  is  a  misleading  idea.  For  even  if 
we  admit,  with  certain  indispensable  qualifications,  that 
the  "socialization"  of  the  law,  and  especially  of  private 
law,  in  the  near  future  cannot  be  avoided,  there  is  nothing 
to  prove  that  a  code  with  broad  and  elastic  provisions 
is  more  apt  to  insure  such  socialization  than  one  that 
lays  down  strict  and  authoritative  rules.  It  all  depends  on 
how  much  confidence  one  has  in  those  who  must  ad- 
minister the  "social"  statutes,  especially  the  courts. 
If  one  believes,  as  do  many  of  those  who  desire  to  regulate 
social  processes  by  statutes,  that  the  legislative  power 
alone  is  sufficiently  free  from  ancient  prejudices,  and  at 
the  same  time  strong  enough  to  curb  the  excesses  of  the 
traditional  individualism,  he  will  conclude  that  the  de- 
sired socialization  will  be  accomplished  precisely  in  the 
degree  in  which  the  provisions  of  the  statutory  law 
are  detailed,  definite,  and  cannot  be  evaded  (for  instance, 
as  regards  the  legal  protection  of  workingmen).  The 
fact  is  that  the  question  what  tendencies  of  develop- 
ment there  may  be  in  the  law  has  nothing  to  do  with 
the  question  of  technic,  which  deals  merely  with 
the  form  of  law.  Legislative  technic  has  its  own  pecu- 
liar object;  and  that  is  to  make  as  effective  as  is  pos- 
sible to  make  it  any  legal  system  to  which  it  is  applied. 
It  makes  no  difference  whether  that  system  is  frankly 
individualistic  or  out-and-out  socialistic.  The  character 
of  the  system  itself  does  not  at  all  determine  the  form 
of  the  law. 

In  trying  to  find  a  rational  criterion  by  which  to  deter- 
mine the  form  a  statute  should  take  it  would  seem  that 
the  only  general  idea  which  is  apt  to  throw  light  on  the 
subject  may  be  gathered  from  the  part  played  by  the 
written  law  in  expressing  the  whole  body  of  legal  ideas, 
compared  to  other  sources  of  positive  law,  taking  as 


§14]  TWO  TYPES  COMPARED  551 

exemplifications  the  German  and  Swiss  codifications  and 
also  our  French  Civil  Cede  of  1804.  The  written  law  is 
an  expression  of  will  intending  to  regulate  in  a  definite 
manner  the  activities  of  men,  living  in  society,  by  means 
of  language.  It  is  necessary,  therefore,  to  know  to  what 
extent  it  may  be  counted  upon  to  have  innate  force 
and,  so  to  speak,  put  itself  into  effect,  so  as  to  guarantee 
the  security  of  subjective  rights  while  yet  allowing  these 
to  develop  in  harmony  with  the  purposes  of  society, 
and  thereby  to  avoid  the  necessity  of  employing  other 
methods  for  creating  or  transforming  positive  law. 
More  briefly  stated:  what  can  the  written  law  do  by 
itself,  and  what  must  it  leave  to  the  action  of  social  pro- 
cesses? This  is  an  infinitely  difficult,  possibly  an  in- 
soluble problem.  For  we  may  have  to  admit  as  an 
indubitable  fact  that  the  statute  law  is  not  all-sufficient, 
that  it  will  be  inadequate  to  the  needs  of  to-morrow  no 
matter  how  perfect  it  may  be  at  any  given  date ;  yet  it 
will  always  be  possible  to  embrace  more  or  less  com- 
pletely all  social  relations,  to  make  its  network  of  rules 
more  or  less  close  so  as  either  to  restrict  or,  on  the  con- 
trary, to  extend  the  field  left  to  customary  law  or  to  the 
free  discretion  of  the  judge.  Now  it  would  seem  that 
it  will  depend  much  less  on  fixed  principles  than  on  con- 
siderations of  expediency,  whether  we  shall  decide  upon 
one  or  the  other  of  these  tendencies.  These  considera- 
tions may  consist  of  popular  habits,  of  the  position  held 
by  the  judiciary,  and  the  confidence  it  inspires,  of  the 
importance  attributed  to  the  certainty  of  the  law  so  as 
to  render  business  secure,  or  any  other  considerations, 
varying  according  to  time  and  place.  At  any  rate,  a 
legislator  who  makes  statutes  for  a  definite  country  and 
at  a  given  time  is  in  a  position  where  he  can  appreciate 
the  weight  to  be  attached  to  all  these  matters.  Therefore, 
his  first  rule  to  follow  ought  to  be  perhaps  this,  that  he 


552  GENY:   TECHNIC  OF  CODES      [Cn.XII 

must  determine  as  accurately  as  possible  what  subject- 
matters  lend  themselves  to  definite  and  detailed  regula- 
tion, and  what  others  should  to  a  great  extent  be  left  to 
the  unhampered  discretion  of  those  whose  business  it  is 
to  interpret  the  statute,  because  they  require  a  greater 
freedom  of  administration.  We  may  add,  without 
appearing  to  be  over-bold,  that  the  general  conditions  of 
the  civilization  of  our  time  suggest  in  most  cases  the  need 
for  greater  stability  and  accuracy  of  the  law  by  means  of 
rather  close  statutory  rules,  because  the  most  urgent 
requirement  of  the  legal  organization  among  civilized 
nations  is  an  assured  security  for  all  the  various  interests. 

It  would  be  highly  desirable  to  confirm  and  elucidate 
the  ideas  just  stated  by  referring  to  the  practical  results 
of  the  recent  codifications  and  their  characteristic  forms 
as  analyzed  above.  Unfortunately,  this  source  of  infor- 
mation fails  us,  not  only  with  regard  to  the  Swiss  Code, 
which  [at  the  time  this  paper  was  written]  had  not  yet 
become  law,  but  even  as  regards  the  German  "Biirger- 
lichesGesetzbuch,"  which  has  not  yet  been  in  force  long 
enough  to  warrant  any  inferences  based  on  experience  re- 
specting so  subtle  and  elusive  an  element  as  the  legisla- 
tive technic  of  modern  statutes. 

In  the  absence  of  real  practical  experience,  we  may  at 
least  observe  what  the  trend  of  opinion  is  among  com- 
petent persons  regarding  the  merits  of  the  technical 
methcd  followed  on  the  one  hand  or  on  the  other. 

The  simple  and  yet  full  form  of  the  Swiss  preliminary 
draft  has  pleased  people  very  generally.  Those,  how- 
ever, who  have  studied  the  draft  more  closely  could 
not  help  being  struck  by  the  feebleness  of  a  technical 
form  which  leaves  so  many  gaps  and  ambiguities  in 
so  fundamental  a  structure  as  the  civil  law  of  a  country. 
This  feebleness  is  felt  very  strongly  by  a  foreigner  coming 
into  contact  with  the  provisions  of  the  draft.  While 


§14]  TWO  TYPES  COMPARED  553 

it  is  apparently  very  easy  to  get  an  intelligent  notion 
of  the  proposed  statute  as  a  whole,  it  is  just  as  difficult 
to  penetrate  into  the  precise  meaning  of  the  several 
provisions  of  a  body  of  statutes  that  confines  itself  to 
giving  only  the  grand  outlines  of  the  law.  To  make 
such  a  code  practically  effective,  one  must  rely  on  the 
sagacity  and  skill  of  the  men  composing  the  judicial 
and  executive  departments  of  the  Government  and 
assume  that  this  skill  and  sagacity  will  become  cumula- 
tive until  the  law  is  fully  established.  This  impression, 
to  be  sure,  lessens  to  some  extent  when  one  reads  the 
draft  of  1904.  The  amendments  of  detail  which  have 
been  made  in  this  text,  as  compared  to  Huber's  original 
draft,  are  enough  to  show  how  this  form  of  legislation 
lends  itself  to  methodical  improvement,  and  also  indi- 
cates how  such  improvement  may  be  expected  to  come 
about. 

At  this  point,  the  German  "Biirgerliches  Gesetzbuch" 
of  1906  came  upon  the  scene  as  a  model  which,  on  closer 
acquaintance,  makes  an  impression  differing  in  two 
respects  from  the  Swiss  drafts.  On  the  one  hand,  it 
requires  strict  attention  and  quite  a  little  mental  labor  to 
enter  into  the  meaning  of  these  well-balanced  provisions, 
which  are  connected  by  a  chain  of  rigorous  logic  and 
qualify  or  support  each  other.  If  I  may  testify  to  my 
personal  experience,  this  effort  is  particularly  great  for 
the  professor  of  law  who  is  trying  to  give  an  account  of 
the  contents  of  the  German  Civil  Code.  The  least 
little  section  cannot  be  explained  without  going  into  a 
pretty  elaborate  disquisition.  On  the  other  hand,  after 
we  have  once  mastered  the  full  content  of  the  provisions 
of  this  statute,  we  are  compensated  by  a  feeling  that 
we  stand  on  very  solid  ground  which  affords  almost 
absolute  security  to  practical  affairs.  Only  one  feels 
regret  that  this  last  advantage  could  not  be  gained 


554  GENY:  TECHNIC  OF  CODES      [CH.XII 

except  at  the  price  of  a  tendency  towards  abstraction 
unrelieved  by  an  element  of  piquancy  in  speech, —  one 
might  even  say  at  the  price  of  a  pedantry  that  leaves 
no  room  for  an  easy  flow  of  expression  and  makes  it 
impossible  that  the  legal  provisions  could  ever  be  popu- 
larly understood.  In  this  regard  the  principal  fault  of 
the  first  draft  still  weighs  heavily  on  the  statute  in  its 
final  form.  The  general  critical  appreciation  which  the 
technical  form  of  this  Code  has  met  may  be  put  into  a 
nutshell  by  adding  to  the  above  observations  that 
the  German  Civil  Code  sometimes  seems  to  exceed  the 
bounds  of  what  it  is  expedient  to  formulate  in  definite 
statutory  rules.  This  is  notably  true  where  a  cate- 
gorical and  formal  distinction  is  made  between  the 
different  kinds  of  legal  commands,  such  as  mandatory 
and  directory  provisions,  but  especially  in  the  case 
of  the  detailed  and  imperative  provisions  regarding 
burden  of  proof. 

All  these  considerations  may  be  easily  crystallized 
into  the  judgment  that  the  legislative  form  best  adapted 
to  the  needs  and  the  aspirations  of  the  present  time  will 
be  found  in  a  skillful  combination  of  the  two  types  which 
we  have  analyzed  one  after  the  other.  The  lightly 
drawn  and  elastic  subdivisions  of  the  Swiss  drafts  may 
form  the  substratum,  but  their  contents  should  be  made 
definite  and  precise  by  the  methods  which  the  German 
legislator  has  carried  so  far.  In  more  simple  form,  and 
bearing  in  mind  that  the  technical  form  of  the  Swiss 
Code  is  nothing  but  the  technic  of  our  Civil  Code  of 
1804,  modernized  and  better  reasoned  out,  we  may  be 
able  to  admit  that  a  judicious  use  of  the  principal  methods 
of  the  "Burgerliches  Gesetzbuch"  of  1896  would  suffice 
to  assure  for  our  French  legislative  technic  all  the 
improvements  which  at  the  present  day  are  imme- 
diately desirable.  This  seems  to  have  been  felt  by  the 


§14]  TWO  TYPES  COMPARED  555 

learned  and  able  author  of  the  draft  for  a  Tunisian  civil 
and  commercial  code,  Dr.  Santillana.  In  his  com- 
plicated and  most  excellent  work,  he  has  succeeded  in 
improving  the  provisions  of  our  French  law  by  contact 
with  German  ideas,  not  to  speak  of  the  place  he  had 
to  give  to  principles  of  Mohammedan  law.  However, 
to  my  mind,  it  is  unfortunate  that  he  has  not  carried 
far  enough  those  technical  methods  of  which  the  "Biir- 
gerliches  Gesetzbuch"  of  1896  gave  him  such  an  excellent 
model. 

§  15.  Conclusion.  In  order  to  derive  from  our 
study  more  complete  and  definite  conclusions,  we  may 
rise  above  the  differences  we  have  just  emphasized 
and  add  some  new  rules  to  the  principles  that  have  been 
known  for  a  long  time  and  have  served  as  such  in  finding 
a  basis  for  our  investigations.  These  new  rules  we  may 
hold  to  be  established  by  unanimous  acceptance  in  the 
most  recent  codifications,  and  it  would  seem  that  in  future 
statute-making  they  ought  to  be  carefully  observed. 

I.  A  modern  legislator  ought  to  be  on  his  guard 
against  enacting  theoretical  ideas  or  taking  sides  in  regard 
to    mere    doctrinal    conceptions.     He    should    restrict 
himself  to  formulating  rules  having  essentially  practical 
effects. 

II.  While  he  should  avoid  abstractions,  which  are 
often  meaningless  for  practical  purposes,  he  need  not  be 
afraid  of  a  certain  amount  of  generalization.     It  would 
even  seem  to  be  the  proper  function  of  statutory  legis- 
lation not  to  attempt  the  making  of  a  distinct  rule  for 
each  separate  case,  but  rather  to  adopt  provisions  broad 
enough  for   each  to  comprise  all  the  concrete  states  of 
fact    that    have    common    characteristics    sufficient    to 
place  them  within  a  single  class. 

III.  The  rules  need  not  be  in  popular  language  except 
to  this  extent,  that   they  should  express  a  real   social 


556  GENY:  TECHNIC  OF  CODES      [CH.XH 

phenomenon  in  clear  language  appropriate  to  the  time 
and  the  social  environment. 

IV.  Legal  definitions  should  no  longer  aim  at  sys- 
tematic, logical  exactness,  but  rather  at  describing  the 
legal  ideas  to  which  the  statute  refers  in  firm  outlines 
so  as  to  show  clearly  to  what  the  rule  applies.    It  is  with 
this  object  in  view  that  English  statutes  frequently  con- 
tain such  definitions,  while  in  our  French    statutes  we 
find  them  but  rarely.    The   practice  ought  to  be  ex- 
tended in  proper  cases. 

V.  It  would  seem  that  a  statute  might  very  well  make 
use  of  special  grammatical  forms  to  distinguish  provis- 
ions of  different  nature.    It  ought  not  to  be  deterred  by 
the  monotony  of  stereotyped  formulas  if  these  help  to 
make  the  meaning  more  plain.     Such  stereotyped  for- 
mulas, however,  are  appropriate  only  to  rules  that  can 
be  expressed  very  definitely  and  which,  in  the  opinion  of 
the   legislator,   do   not   require  different   interpretation 
according  to  the  nature  of  the  concrete  states  of  fact  to 
which  they  are  to  apply. 

VI.  Legislative   technic   will    find   further   develop- 
ment principally  in  the  direction  of  stability  and  accuracy 
of  its  terminology.    Undoubtedly  the  discussion  has  not 
yet  been  closed  regarding  the  degree  of  rigor  to  which 
this  stability  and  accuracy  should  be  carried.    There  is  no 
apparent  doubt,  however,  that  every  time  a  legislator 
wishes  to  apply  to  a  clearly  determined  legal  idea  a  term 
which   shall   describe   it  specifically   and  distinguish   it 
from  all  others,  he  must  choose  a  term  that  is  deliber- 
ately adapted  to  that  one  idea,  and  then  adhere  invari- 
ably to  that  one  term.    It  is  easy  to  see  what  certainty 
this  method  can  assure  to  the  interests  which  require 
certainty  in  the  law,  and  we  cannot  fail  to  understand 
that  in  this  manner  we  can  give  to  the  written  law,  so 


§15]  CONCLUSION  557 

far  as  its  technical  form  is  concerned,  all  the  excellence 
which  we  may  ever  hope  for  it. 

If  these  rules  are  neglected,  legislative  technic  must  re- 
main shifting  and  unstable  in  its  details,  and  conse- 
quently in  a  constant  process  of  readaptation.  The 
essential  thing  is  that  the  modern  legislator  should  pay 
conscious  attention  to  this  phase  of  his  labors  and  try 
to  improve  it  by  cultivating  a  proper  comprehension  of 
these  requirements. 

I  am  certainly  far  from  believing  that  this  technical 
or  "formal"  element  in  legislation  is  of  equal  importance 
with  the  substance  of  law  in  its  moral  and  sociological 
relations.  While  emphasizing  however,  the  paramount 
character  of  the  latter,  to  which  so  many  and  important 
investigations  have  very  properly  been  devoted,  I  am 
satisfied  that  I  have  shown  what  modest  but  neces- 
sary place  belongs  also  to  these  purely  technical  con- 
siderations in  any  analysis  of  modern  civil  law  or  in 
any  attempt  at  revising  it. 


558   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 


CHAPTER  XIII 

SCIENTIFIC    METHOD    IN   LEGISLATIVE 
DRAFTING 

BY  ERNST  FREUND  l 

§  1.  INTRODUCTION.—  §2.  LEGISLATIVE  PRACTICE  AS  A 
CONSTRUCTIVE  FACTOR.  —  §  3.  INCREASED  EXECUTIVE 
PARTICIPATION  IN  AMERICAN  LEGISLATION.  —  §  4.  DE- 
FECTS OF  AMERICAN  LEGISLATIVE  PROCEDURE.  —  §  5. 
ENGLISH  PRIVATE  BILL  LEGISLATION.  —  §  6.  IMPROVE- 
MENT OF  LEGISLATIVE  PROCEDURE.  —  §  7.  JURISPRU- 
DENCE AS  A  CONSTRUCTIVE  FACTOR.  —  §  8.  SOURCE 
MATERIAL. 

§  1.  Introduction.  When  we  think  of  legislation  as  a 
branch  of  jurisprudence  amenable  to  controlling  princi- 
ples, we  have  in  mind  primarily  the  doctrines  of  our  con- 
stitutional law  under  which  statutes  are  judged  by  the 
courts  as  to  their  conformity  to  an  overruling  law. 
And  it  may  be  conceded  that  in  the  name  of  due  process 
gross  violations  of  principle  in  the  enactment  of  statutes 
will  be  corrected.  Very  little  reflection,  however,  must 
show  that  judicial  control  is  incapable  of  producing 
adequate  principles  of  legislation.  In  order  to  declare  a 

i  [Professor  of  law  in  the  University  of  Chicago;  member  of  the 
Illinois  Commission  on  Uniform  State  Legislation;  member  of  the 
American  Bar  Association  Committee  on  Legislative  Drafting;  author 
of  a  treatise  on  "The  Police  Power." 

This  chapter  is  part  of  the  author's  forthcoming  book  on  "Standards 
of  American  Legislation."  —  ED.] 


§  1  ]  INTRODUCTION  559 

statute  unconstitutional,  a  court  must  be  convinced 
that  it  falls  below  the  minimum  of  admissible  standards ; 
but  legislative  standardization  is  not  satisfied  by  a 
barely  tolerable  level  of  performance;  it  means  the 
application  of  the  best  thought  that  can  be  given  to  the 
substance  and  technic  of  legislation.  In  the  nature 
of  things  this  cannot  result  from  mere  negation,  but 
must  be  operative  in  the  very  process  of  making  the 
law.  A  science  of  legislation  can  only  be  the  product 
of  constructive  factors,  and  any  effort  to  improve  legis- 
lation must  be  directed  to  the  task  of  discovering  the 
best  and  most  practical  of  these  and  developing  their 
possibilities  for  good  to  the  utmost. 

§  2.  Legislative  Practice  as  a  Constructive  Factor.  In 
European  countries  in  which  legislation  is  entirely 
uncontrolled  by  the  courts,  its  quality  is,  generally 
speaking,  higher  than  it  is  in  America.  This  is  undoubt- 
edly the  judgment  of  all  who  have  had  occasion  to  insti- 
tute comparisons.  Such  a  comparison  should  not  have 
primary  reference  to  the  social,  economic,  or  political 
content  of  laws.  There  may  be  ground  for  believing  that 
our  election  laws,  our  married  women  acts,  our  juvenile 
court  laws,  and  perhaps  others,  are  more  advanced  than 
those  of  France  or  Germany,  and  if  our  social  legislation 
may  seem  backward  that  is  due  to  reasons  which  have 
very  little  to  do  with  the  problems  here  discussed.  Nor 
should  attention  be  directed  merely  to  matters  of  style 
which,  even  if  we  give  them  all  the  importance  they 
deserve,  are  after  all  a  secondary  consideration.  But 
we  should  take  as  a  standard  of  comparison  those  juristic 
and  technical  features  of  legislation  which  have  special 
reference  to  the  operation  and  administration  of  the 
law,  to  the  safeguarding  of  public  and  private  rights, 
and  to  the  coordination  of  particular  statutes  with  estab- 
lished principles  of  law  and  justice.  The  superiority  of 


560   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

Europeon  legislation  to  our  own  in  these  respects  is  not 
seriously  disputed,  nor  can  there  be  much  doubt  as  to 
the  reasons  for  this  superiority. 

The  striking  difference  between  legislation  abroad 
and  in  this  country  is  that  under  every  system  except 
the  American,  the  executive  government  has  a  practical 
monopoly  of  the  legislative  initiative.  In  consequence, 
the  preparation  of  bills  becomes  the  business  of  govern- 
ment officials  responsible  to  ministers,  and  who  are 
mainly,  if  not  exclusively,  employed  in  constructive 
legislative  work.  In  France  and  Germany  the  govern- 
ment initiative  of  legislation  has  been  established  for  a 
long  time  and  the  right  of  members  to  introduce  bills  is 
hedged  about  and  practically  negligible. 

There  are  two  main  reasons  why  executive  initiative 
should  lead  to  a  superior  legislative  product.  The  one 
is  that  it  is  the  inevitable  effect  of  professionalizing  a 
function  that  its  standards  are  raised.  The  draftsman 
will  take  a  pride  in  his  business  and  in  course  of  time  will 
become  an  expert  in  it.  He  learns  from  experience,  and 
traditions  will  be  formed.  This,  of  course,  presupposes 
that  he  is  a  permanent  official.  In  addition  he  will  be 
responsible  to  his  chief  who  naturally  resents  drafting 
defects  that  expose  him  to  parliamentary  non-partisan 
criticism.  In  Germany  the  best  juristic  talent  that  goes 
into  the  government  service  is  utilized  for  the  preparation 
of  legislative  projects,  and  these  are  regularly  accompan- 
ied by  exhaustive  statements  of  reasons  which  enjoy 
considerable  authority.  Drafts  of  important  measures 
are  almost  invariably  published  long  before  they  go  to  the 
legislature  in  order  to  receive  the  widest  criticism,  and 
as  the  result  of  criticism  are  often  revised  and  sometimes 
entirely  withdrawn.  The  individual  author  often  re- 
mains unknown  and  the  credit  of  the  Government  stands 
behind  the  work. 


§2]  EXECUTIVE  INITIATIVE  561 

The  second  reason  is  that  when  the  Government  intro- 
duces a  bill  the  parliamentary  debate  is  somewhat  in 
the  nature  of  an  adversary  procedure  or  at  least  there  is, 
as  it  were,  a  petitioner  and  a  judge.  The  minister  or  his 
representative  (in  Germany  and  France  the  experts 
appear  in  parliament  as  commissioners,  while  in  England 
only  parliamentary  secretaries  may  speak, —  much  to  the 
disadvantage  of  the  English  debate)  has  to  defend  the 
measure  against  criticism,  and  legal  imperfections  or 
inequities  wculd  be  legitimate  grounds  of  attack.  The 
liability  to  criticism  insures  proper  care  in  advance. 
Together  with  the  executive  initiative  goes  a  practical 
limitation  of  the  number  of  bills  introduced,  an  increased 
relative  importance  of  each  measure  and  proportionately 
greater  attention  bestowed  on  it.  Where  this  form  of 
legislative  preparation  and  procedure  has  been  observed 
it  is  not  necessary  to  seek  further  reasons  for  a  good 
quality  of  the  product. 

The  connection  between  executive  initiative  and  the 
professionalizing  of  the  work  of  drafting  bills  is  shown 
by  Sir  Courtenay  Ilbert  in  his  work  on  the  Mechanics  of 
Law  Making  (ch.  4).  Until  1832  even  very  important 
measures  were  private  members'  acts.  From  that  time 
on  the  leading  bills  originated  more  and  more  with  the 
Government,  the  duty  of  preparation  devolving  at  first 
in  the  main  on  the  Home  Secretary  and  later  on  the 
Treasury.  The  responsible  ministers  found  it  necessary 
from  the  beginning  to  appoint  men  to  take  charge  of  the 
work.  Thus  we  find  from  1837  on  a  succession  of  drafts- 
men, and  it  is  an  interesting  fact  that  the  post  from 
that  time  on  has  been  held  by  only  six  men,  Sir  Courtenay 
Ilbert  himself  having  served  as  Parliamentary  Counsel 
of  the  Treasury  (the  title  of  the  office)  until  he  became 
clerk  of  the  House  of  Commons.  This  shows  that 
the  work  was  always  treated  as  non-partisan  and  was 


562   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

sufficiently  attractive  to  become  the  life  work  of  able  and 
distinguished  men.  The  result  is  primarily  apparent  in 
improved  form  of  legislation,  but  if  conclusions  may  be 
drawn  from  a  necessarily  casual  and  inexhaustive  study 
of  modern  English  statutes,  there  has  also  been  an  im- 
provement in  the  standardization  of  substantive  and 
administrative  provisions.  If  so  much  has  been  accom- 
plished through  the  efforts  and  the  influence  of  a  few 
individuals,  it  can  be  readily  imagined  how  much  the 
cause  of  scientific  legislation  must  have  gained  by  a 
century  of  work  carried  on  in  French  and  German  govern- 
ment departments  by  men  highly  trained,  thoroughly 
expert  in  their  respective  fields,  and  held  to  exacting 
standards  by  official  discipline  and  tradition.  The 
legislative  product  under  such  conditions  will  be  largely 
of  the  same  high  caliber  as  the  judicial  product  has  been 
under  the  English  system  of  concentration  in  the  hands 
of  a  few  high-grade  judges. 

§  3.  Increased  Executive  Participation  in  American 
Legislation.  It  is  not  uncommonly  urged  at  the  present 
time  that  executive  officers  be  given  a  right  to  appear  on 
the  floor  of  the  houses  of  the  legislature  and  to  participate 
in  debate.  It  would  not  be  a  much  more  radical  step  to 
give  the  chief  executive  a  right  to  introduce  bills.  He 
has  now  by  all  constitutions  the  right  to  recommend  legis- 
lation and  as  a  matter  of  power  there  is  no  reason  why 
he  should  not  present  his  recommendations  in  form  of 
bills.  This  would  not  give  the  measure  recommended 
the  parliamentary  status  of  a  bill  and  as  a  matter  of 
politics  might  prejudice  it;  but  to  give  it  such  status 
would  not  even  require  a  constitutional  amendment, 
a  house  rule  would  be  sufficient.  As  a  matter  of  fact,  the 
chief  executive  can  readily  find  members  to  bring  in  bills 
known  to  come  from  him  and  spoken  of  as  administra- 
tion bills,  and  they  have  been  officially  recognized  as  such 


§3]  AMERICAN  LEGISLATION  563 

by  house  rules  (7  Am.  Pol.  Sc.  Review,  239) ;  but  their 
status  would  gain  if  the  executive  could  formally  appear 
as  their  sponsor.  The  constitution  of  Alabama  (art.  4, 
sec.  70)  provides  that  the  governor,  auditor,  and  attorney- 
general  shall,  before  each  regular  session  of  the  legisla- 
ture, prepare  a  general  revenue  bill  to  be  submitted  to 
the  legislature  for  its  information,  to  be  used  or  dealt  with 
by  the  House  of  Representatives  as  it  may  elect.  This 
seems  to  give  the  bills  submitted  a  regular  parliamentary 
standing,  although  not  a  preferred  standing.  It  would 
not  be  for  the  present  practicable  or  wise  to  curtail  sub- 
stantially the  right  of  members  to  introduce  bills,  and 
any  initiative  given  to  the  chief  executive  would  have  to 
be  left  to  work  out  its  own  inherent  possibilities.  Even 
in  Europe  the  Government  has  no  legal  monopoly  of  the 
initiative,  and  its  practical  monopoly  is  the  result  of  con- 
stitutional relations  which  do  not  exist  in  America.  It 
is  not  impossible  that  even  under  our  conditions  the  exec- 
utive may  finally  obtain  a  preponderant  share  in  legis- 
lative initiation.  But  such  a  development  wrould  take 
a  long  time  and  there  can  be  no  thought  of  forcing  it. 
We  should  therefore  not  look  in  that  quarter  for  a  con- 
trolling influence  upon  principles  of  legislation. 

§  4.  Defects  of  American  Legislative  Procedure.  The 
characteristic  features  of  American  legislative  constitu- 
tion and  procedure  are  unfavorable  to  a  high  degree  of 
workmanship.  Each  member  has  the  right  to  introduce 
bills  and  makes  use  of  it.  The  number  of  bills  introduced 
is  so  great  that  many  receive  no  consideration  whatever, 
and  this  inevitably  reacts  upon  the  care  in  preparation. 
It  has  become  quite  common  for  introducers  of  bills  to 
admit  that  "of  course  the  bill  is  by  no  means  perfect" 
and  that  it  is  simply  the  framework  of  something  that 
can  be  made  acceptable.  The  authorship  and  sometimes 
the  sponsorship  is  unknown.  Many  bills  are  introduced 


564   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

"by  request, "the  introducing  member  assuming  no  res- 
ponsibility. Indeed  it  is  only  in  the  minority  of  cases  that 
responsibility  for  the  form  of  the  bill  can  be  definitely  fixed, 
and  even  if  the  draftsman  is  known  he  rarely  holds  himself 
answerable  for  defects  that  mar  the  bill  or  that  may  event- 
ually lead  to  the  judicial  nullification  of  the  statute. 

Apart  from  this  lack  of  initial  responsibility,  the  course 
of  the  bill  through  the  legislature  nearly  always  lacks 
that  element  of  adversary  procedure  which  is  calculated 
to  discover  and  remedy  defects.  The  debates  on  the 
floor  of  the  house  can  naturally  hardly  ever  go  into  the 
discussion  of  details  which  must  be  reserved  for  com- 
mittee; in  committee  there  is  often  keen  and  valuable 
criticism,  and  leaving  aside  the  absence  of  executive 
participation  this  stage  may  be  as  well  handled  as  a 
committee  discussion  in  a  European  parliament.  But 
there  is  no  assurance  that  an  intelligent,  adverse  interest 
will  develop  in  the  committee,  and,  if  not,  the  measure 
is  apt  to  be  accepted  in  reliance  upon  the  sponsor's  good 
intentions  and  sometimes  as  a  matter  of  courtesy; 
for  all  members  are  both  petitioners  and  granters  of 
petitions  and  it  would  be  strange  if  there  were  no  mutual 
accommodation.  There  is  no  definite  allotment  of 
reciprocal  responsibility  that  •  sharpens  both  wits  and 
conscience.  The  multiform  organization  of  the  legisla- 
ture • —  two  bodies  with  the  cooperation  of  the  executive 
—  is  not  utilized  for  functional  differentiation.  The 
second  house  of  the  legislature  merely  duplicates  the 
work  of  the  first  house,  and  this  duplication  may, 
of  course,  serve  to  discover  and  correct  defects.  In 
European  countries  the  upper  house  has  not  merely 
a  different  political  complexion  —  with  this  we  are  not 
concerned  except  that  a  higher  degree  of  conservatism 
will  be  more  favorable  to  vested  rights  —  but  it  is  gen- 
erally composed  of  men  of  exceptional  legislative  or 


§4]  CHARACTERISTIC  DEFECTS  565 

judicial  experience  or  learning  or  business  capacity,  so 
that  it  is  peculiarly  well  qualified  to  deal  with  technical 
questions.  The  House  of  Lords,  especially  since  it  has 
been  shorn  of  political  power,  has  become  primarily  a 
revisory  body,  and  its  debates  show  a  high  degree  of  ex- 
pert knowledge  and  criticism.  In  the  United  States  the 
governor  has  a  certain  revisory  power  incidental  to  the 
veto  power,  which  might  be  further  developed  if  ade- 
quate time  were  given  to  the  governor  to  act  on  bills 
after  their  enactment  and  after  the  close  of  the  session. 
But  at  best  all  those  revisory  functions  cannot  cure  a 
bill  that  is  badly  drafted,  except  by  rejecting  it.  The 
work  of  original  preparation  must,  in  many  respects, 
remain  controlling.  For  influence  in  legislation  execu- 
tive initiative  without  the  veto  counts  for  more  than  the 
veto  without  the  initiative. 

Notwithstanding  the  disadvantages  of  unfixed  or 
unconcentrated  responsibility,  it  is  still  remarkable  that 
the  experiences  of  many  years  should  not  have  been 
able  to  produce  in  legislative  bodies  definite  and  reason- 
ably high  standards  of  workmanship  in  the  business  for 
which  they  mainly  exist.  Lack  of  continuity  between 
legislatures  and  the  frequent  changes  in  membership 
account  for  this  only  in  part,  for  the  defects  are  also  found 
where  these  handicaps  do  not  exist,  and  they  seem  to 
belong  to  legislative  bodies  in  general.  Perhaps  the 
reasons  for  the  indifference  to  legislative  technic  must  be 
found  in  the  predominance  of  political  interests  and  in 
the  power  of  traditions  which  perpetuate  low  as  well  as 
high  standards.  A  large  body  responds  with  genuine 
interest  only  to  appeals  of  a  vital  and  human  nature  and 
principles  of  legislation  lack  that  quality.  One  can, 
however,  easily  imagine  that  if  high  standards  had  once 
established  themselves,  even  a  large  legislative  body 
might  be  careful  and  zealous  of  their  maintenance. 


566   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

§  5.  English  Private  Bill  Legislation.  There  is  to  my 
knowledge  only  one  instance  in  which  a  parliamentary 
body  has  by  itself  produced  a  method  of  procedure 
having  primary  reference  to  the  observance  of  principle 
and  the  maintenance  of  right,  and  that  is  the  English 
method  of  Private  Bill  Legislation.  This  is  used  where- 
ever  application  is  made  to  Parliament  for  the  grant  of 
powers  of  local  government  or  for  the  authorization  of 
public  works  or  undertakings  or  services  that  require  the 
use  of  highways  or  the  exercise  of  powers  of  condemnation . 
The  procedure  which  resembles  a  judicial  proceeding, 
leaving  only  slightly  more  room  for  discretion,  has  been 
fully  described  by  Mr.  Lowell  in  his  work  upon  the 
Government  of  England  (chapters  19  and  20),  and  the 
details  are  set  forth  with  great  fullness  in  Mr.  May's 
Treatise  on  Parliamentary  Procedure.  Its  main  points 
are:  fixed  forms  of  application,  notices  to  adverse 
parties,  precautions  against  the  grant  of  novel  powers, 
examination  of  schemes  by  official  experts,  and  regular 
hearings,  —  all  laid  down  in  an  elaborate  code  of  standing 
orders.  Nothing  like  it  has  even  been  developed  in  con- 
nection with  special  legislation  in  the  United  States.  It 
is  to  be  noted  that  the  system  in  England  originated  in  the 
House  of  Lords,  a  permanent  body,  and  was  apparently 
due  in  the  main  to  the  efforts  of  one  peer,  who  for  many 
years  was  chairman  of  the  committee  in  charge  of  pri- 
vate bills;  its  excellence  commended  itself  to  the  House 
of  Commons  which  adopted  substantially  the  some  pro- 
cedure. 

The  private  bill  procedure  in  England  has  elicited  the 
admiration  of  all  foreign  students,  although  its  great 
expense  is  a  serious  flaw.  When  it  is, however, considered 
with  reference  to  its  applicability  to  legislation  in  general, 
it  appears  after  all  as  a  very  specialized  instrument. 
What  is  done  in  England  by  special  acts  is  done  in  the 


§5]  PRIVATE  BILLS  IN  ENGLAND  567 

United  States  under  general  statutes,  so  that  the  machin- 
ery of  legislation  in  particular  cases  is  entirely  dispensed 
with  and  the  observance  of  general  principles  secured  in  a 
much  simpler  manner.  England  has  preferred  not  to 
grant  the  power  required  by  public  service  companies 
by  general  provision  and  was  therefore  compelled  to 
substitute  a  scheme  of  Parliamentary  administration. 
Legislation  being  used  for  the  purpose  of  administra- 
tion, it  seeks  to  attain  administrative  uniformity,  and 
this  the  private  bill  procedure  in  the  main  accomplishes. 
Primi  facie,  each  scheme  has  to  conform  to  stereotyped 
standards  and  care  is  taken  that  deviations  are  not 
sanctioned  inadvertently;  but  from  time  to  time  new 
clauses  appear  which  gradually  become  common  and 
thus  pave  the  way  for  new  norms.  Thus  a  special  report 
on  police  and  sanitary  regulation  bills  made  in  1898 
(Commons  Papers,  1898,  vol.  2,  no.  291,  p.  355)  said 
that  the  time  had  arrived  for  including  in  a  public  bill 
many  of  the  clauses  then  frequently  introduced  in  private 
bills  and  invariably  accepted  by  Parliament.  Private 
bill  legislation,  in  other  words,  is  an  excellent  way  of 
preparing  general  legislation,  but  of  course  not  to  be 
thought  of  as  simply  a  means  toward  that  end.  Our 
general  railroad  and  banking  acts  have  likewise  grown 
upon  the  basis  of  special  acts,  but  the  abrogation  of 
special  acts  has  nevertheless  been  desirable  and  advanta- 
geous. When,  moreover,  we  examine  the  standing  orders 
governing  private  bills,  we  find  that  they  cover  none  of 
the  fundamental  principles  of  legislation  which  are  en- 
forced by  our  courts  as  constitutional  limitations  (non- 
discrimination,  public  purpose,  compensation,  etc.)  and 
the  index  in  May's  Treatise  does  not  even  contain  such 
words  as  property,  vested  rights,  in  jury,  or  compensation. 
The  standing  orders  secure  procedural  safeguards,  and 
substantive  principles  are  left  to  custom,  tradition,  and 


568   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

the  conservative  sense  of  Parliament.  Even  as  respects 
procedural  safeguards,  the  private  bill  is  treated  as  an 
issue  between  petitioners  and  certain  definite  and  par- 
ticularly interested  contestants;  outsiders  representing 
the  general  public  have  a  "locus  standi"  only  under 
considerable  restrictions;  only  the  public  government 
departments  are  given  ample  opportunity  for  notice  and 
supervision.  A  report  of  1902  calls  attention  to  the 
desirability  of  an  examination  of  unopposed  bills  in  the 
public  interest  and  in  the  interest  of  economy,  since  it 
may  be  to  the  interest  of  no  private  individual  to  oppose 
a  measure  (Commons'  Papers,  1902,  vol.  7,  no.  378, 
p.  322).  As  a  means  of  guarding  general  public  interests 
the  system  has  therefore  not  been  adequately  tried,  and 
it  will  be  observed  that  in  England  it  has  never  been 
applied  to  general  legislation  involving  matters  of  public 
policy,  not  even  to  the  committee  stage  of  deliberation 
which  is  reserved  for  the  technical  improvement  of 
measures.  Altogether,  while  the  English  system  of 
private  bill  legislation  is  valuable  for  its  purposes,  its' 
purposes  have  otherwise  been  accomplished  in  America, 
and  the  needs  of  general  legislation  are  not  served  by  it. 
§  6.  Improvement  of  Legislative  Procedure.  It  would 
probably  be  a  great  mistake  in  any  event  to  try  to  force  a 
higher  quality  of  legislative  work  by  imposing  through  the 
constitution  new  procedural  requirements.  The  present 
rules  of  procedure  have  been  devised  by  the  legislative 
bodies  themselves  in  accordance  with  their  supposed 
needs;  the  placing  of  a  number  of  them  in  the  consti- 
tution has  added  little  to  their  effectiveness,  but  has 
increased  the  technical  grounds  of  objection  to  the  valid- 
ity of  statutes,  and /the  most  elaborately  framed  safe- 
guards will  prove  unavailing  if  not  supported  by  tradi- 
tion or  by  a  strong  legislative  conviction  of  their  wisdom 
and  necessity.  If  an  improvement  can  be  effected  by 


§6]       THE  CHANCES  OF  IMPROVEMENT       569 

procedure,  it  should  be  done  through  the  medium  of 
voluntary  and  flexible  house  rules.  Appropriate  require- 
ments regarding  the  introduction  of  bills  might  lead  to 
greater  care  in  preparation  and  fix  responsibility;  but 
the  gain  would  probably  be  confined  to  matters  of  style 
and  form. 

A  very  noteworthy  scheme  was  presented  in  1913  to 
the  Legislature  of  Illinois  but  failed  to  become  law.  The 
bill  provided  for  a  joint  legislative  commission  composed 
of  the  governor,  lieutenant-governor,  speaker  of  the 
House,  chairmen  of  the  Committees  on  Appropriation 
of  the  Senate  and  the  House,  chairmen  of  the  Com- 
mittees on  Judiciary  of  the  Senate  and  the  House,  to- 
gether with  five  other  senators  and  five  other  members 
of  the  House.  The  purpose  of  this  commission  would 
have  been  to  prepare  in  advance  of  a  legislative  session 
a  program  of  legislation  with  drafts  of  bills  on  subjects 
investigated  by  the  commission,  and  the  commission 
was  given  power  to  that  end  to  appoint  special  com- 
mittees of  its  own  members  or  others,  to  study  particular 
problems  and  draft  bills.  Nothing  short  of  actual  exper- 
ience could  determine  the  value  of  such  a  plan  or  the 
alterations  that  might  be  required  in  it,  but  it  will  be 
noted  that  it  forces  nothing  on  the  legislature  and  creates 
no  new  constitutional  problems. 

Perhaps  the  greatest  hope  for  establishing  constructive 
principles  of  legislation  lies  in  the  further  development 
of  plans  that  have  already  been  tried,  and  of  these,  four 
deserve  particular  notice:  (1)  the  preparation  o^  bills 
by  special  commissions ;  (2)  the  delegation  of  power  to 
administrative  commissions;  (3)  the  organization  of 
drafting  bureaus,  and  (4)  the  codification  of  standing 
clauses. 

1 :  LEGISLATIVE  COMMISSIONS  FOR  THE  PREPARATION 
OF  IMPORTANT  MEASURES.  Commissions  for  revising 


570   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

and  codifying  laws  have  been  familiar  in  American  legisla- 
tion from  an  early  period,  but  the  practice  of  creating 
commissions  for  particular  measures  seems  to  be  of  recent 
date,  while  in  England  it  has  been  established  for  many 
years.  It  might  be  interesting  to  ascertain  which  of  the 
principal  reform  statutes  of  England  since  1830  have  been 
originated  by  royal  commission;  in  America  a  similar 
inquiry  would  probably  show  very  few  instances  during 
the  nineteenth  century:  to  judge  from  the  Carnegie 
Institution  Indices  of  Economic  Material,  neither  in  New 
York  nor  in  Massachusetts  were  any  of  the  important 
legislative  measures  before  1900  (married  women,  liquor, 
civil  service,  ballot  reform)  preceded  by  commission 
study  or  report. 

The  most  conspicuous  instance  of  the  employment  of 
commissions  for  the  preparation  of  legislation  has  been 
in  connection  with  the  workman's  compensation  acts; 
less  generally  the  same  method  has  been  pursued  for 
mining  and  factory  laws  and  for  land  title  registration. 
The  commission  generally  holds  public  hearings,  gets 
opinions  in  writing,  informs  itself  as  to  similar  laws  in 
other  jurisdictions,  summarizes  its  Conclusions  and  sub- 
mits a  bill.  The  result  is  generally  a  measure  well 
thought  out  and  well  formulated.  Even  where  the 
subject  is  very  controversial  the  unity  of  the  original 
draft  secures  a  consistent  and  coordinated  statute. 

2:  THE  DELEGATION  OF  POWER  TO  ADMINISTRATIVE 
COMMISSIONS.  The  grant  of  rule-making  powers  to  in- 
dustrial commissions,  public  service  commissions,  boards  of 
health,  civil  service  commissions,  etc.,  is  often  advocated 
mainly  for  the  greater  flexibility  in  enactment  or  change. 
From  this  point  of  view  much  may  also  be  said  against 
the  practice,  since  an  unstable  policy  in  requirements  of 
any  kind  is  undesirable,  and  it  is  doubtful  whether  powers 
are  likely  to  be  exercised  in  that  spirit.  The  real  advan- 


§6]       THE  CHANCES  OF  IMPROVEMENT      571 

tage,  however,  of  such  powers  is  that  the  bodies  in  which 
they  are  vested  are  apt  to  be  better  trained  and  informed 
and  more  professional  in  their  attitude  than  legislative 
bodies,  and  that  the  powers  being  subordinate  in  char- 
acter are  more  readily  controllable  by  reference  to 
general  principles,  whether  laid  down  by  statute  or  by  the 
common  law.  The  body  will  be  sufficiently  judicial  in 
character  to  have  respect  for  precedent,  and  its  policy 
is  therefore  apt  to  be  less  variable  than  that  of  the  legis- 
lature. These  factors  will  tend  to  make  rule-making  more 
scientific  than  statute-making.  There  has  been  too  little 
experience  with  the  working  of  rule-making  bodies  in 
this  country  to  warrant  conclusions  of  much  value;  the 
precise  line  of  demarcation  between  matter  to  be  deter- 
mined by  statute  and  matter  to  be  left  to  regulation  has 
not  yet  been  satisfactorily  settled,  and  procedural 
safeguards  for  the  making  of  rules  have  hardly  yet  been 
developed.  The  method  of  procedure  of  the  Federal 
Trade  Commission  is  novel,  and  perhaps  especially 
adapted  to  the  delicate  and  controversial  problems  with 
which  it  is  called  upon  to  deal,  but  its  working  will  be 
watched  with  interest,  and  it  may  become  a  valuable 
precedent  for  delegating  quasi-legislative  powers  in  order 
that  rules  may  be  gradually  developed  upon  the  basis  of 
particular  cases  after  the  analogy  of  the  common  law. 
If  common  law  methods  can  be  made  applicable  to  the 
development  of  statutory  rules  so  much  the  better. 
There  is  much  reason  to  believe  that  many  phases  of  stand- 
ardization (rates,  methods  of  assessment,  safety  require- 
ments, classification)  can  be  much  more  readily  secured 
through  the  constant  thought  and  ruling  of  an  adminis- 
trative commission  than  through  the  necessarily  sporadic 
acts  of  a  legislative  assembly.  Legislative  power  can, 
in  other  words,  be  exercised  more  effectually  and  more 
in  accordance  with  the  spirit  of  the  constitution  through 


572   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

delegation  than  directly.  This  consideration  should 
weigh  against  abstract  theories  regarding  the  non- 
delegability  of  legislative  power. 

3:  THE  ORGANIZATION  OF  DRAFTING  BUREAUS. 
This  phase  of  the  preparation  of  statutes  is  fully  described 
in  a  report  of  the  Special  Committee  on  Legislative  Draft- 
ing of  the  American  Bar  Association  submitted  in  1913.  It 
appears  that  there  are  now  at  least  fifteen  states  that  have 
some  provision  for  assistance  to  legislators  in  the  technical 
work  of  drafting,  apart  from  or  in  connection  with,  the 
supply  of  reference  material.  The  following  is  quoted 
from  the  report  of  1913: 

"The  Legislative  Reference  Service,  now  actually  carried  on  in 
several  states,  demonstrates  that  it  is  entirely  practical  to  collect, 
classify,  digest,  and  index,  prior  to  a  session  of  a  legislature,  all 
kinds  of  material  bearing  on  practically  all  subjects  likely  to  become 
subjects  of  actual  legislation  at  the  session.  This  material,  where 
the  bureau  is  well  run,  includes  not  only  books  and  pamphlets,  such 
as  might  be  found  in  an  ordinary  library,  but  also  copies  of  bills 
introduced  into  the  various  state  legislatures  and  laws  which  have 
been  enacted  in  this  and  foreign  countries,  and  other  printed  mate- 
rials relating  to  the  operation  of  such  laws  or  the  conditions  creating 
a  need  for  them.  Indeed,  on  most  subjects  of  possible  legislation, 
the  difficulty  is  not  to  find  material,  but  to  arrange  the  large  mass  of 
available  material  so  as  to  make  its  efficient  use  practical.  That  such 
service  has  great  possibilities  of  usefulness  is  evident,  especially 
where  the  service  is  directly  contributory  to  the  drafting  service, 
a  matter  to  be  presently  explained.  The  increasing  complication 
of  our  industrial,  social,  and  governmental  administrative  problems 
renders  it  necessary,  if  the  discussion  of  matters  pertaining  to  legis- 
lation is  to  proceed  in  a  reasonably  intelligent  manner,  that  system- 
atic effort  be  expended  on  the  collection  and  arrangement  of  material 
bearing  on  current  matters  of  public  discussion  likely  to  become  the 
subject  of  legislative  comment.  A  central  agency  to  furnish  such 
service  does  not  take  the  place  of  special  commissions  or  committees 
created  to  investigate  particular  subjects  and  recommend  legisla- 
tion. The  object  of  the  central  reference  service  should  be  to  assist 
such  bodies,  as  well  as  individual  members  of  the  legislature  and 
others  desiring  information  pertaining  to  subjects  of  legislation. 


§6]       THE  CHANCES  OF  IMPROVEMENT       573 

"Existing  agencies  also  demonstrate  .that  it  is  possible  to  provide 
expert  drafting  service  for  the  more  important  measures  and  some 
assistance  in  the  drafting  of  all  bills  introduced.  The  number  of  bills 
for  which  expert  drafting  assistance  can  be  furnished  would  appear 
to  be  merely  a  question  of  the  size  of  the  force  and  the  amount 
of  the  appropriation  for  its  support.  Your  committee,  therefore, 
believes  that  it  is  entirely  practicable  to  establish,  in  connection 
with  any  legislature,  a  permanent  agency  capable  of  giving  expert 
drafting  assistance  for  all  bills  introduced,  and  they  urge  the  Asso- 
ciation to  place  itself  on  record  as  favoring  such  an  agency  as  the 
most  practical  means  of  bringing  about  scientific  methods  of  legis- 
lation, that  is  to  say,  methods  of  drafting  statutes  which  will  secure 
(1)  conformity  to  constitutional  requirements;  (2)  adequacy  of  the 
provisions  of  the  law  to  its  purpose;  (3)  coordination  with  the  exist- 
ing law;  and  (4)  the  utmost  simplicity  of  form  consistent  with 
certainty. 

"The  organization  of  the  two  services,  legislative  reference  and 
legislative  drafting,  and  their  relation  to  each  other,  are  important 
factors  in  the  usefulness  of  the  results  obtained  from  the  establish- 
ment of  the  service.  The  agencies  now  existing,  considered  from  the 
point  of  view  of  organization,  fall  into  two  classes;  those  in  which  the 
legislative  reference  work  and  the  bill  drafting  are  provided  for  in  a 
single  permanent  bureau,  as  in  Wisconsin,  Indiana,  and  Pennsyl- 
vania, and  those  in  which  the  legislative  reference  work  is  carried  on 
by  the  state  library  or  one  of  its  divisions,  the  drafting  work  being 
done  by  persons  appointed  by  and  operating  under  the  direct  control 
of  the  legislature,  as  in  New  York,  Connecticut,  and  Massachusetts. 
Your  committee  does  not  feel  that  they  are  as  yet  in  a  position 
to  express  an  opinion  on  the  relative  merits  of  either  form  of  organ- 
ization. They  are,  however,  of  the  opinion  that  the  reference  service 
should  be  so  organized  and  operated  as  to  be  directly  contributory 
to  the  drafting  service,  and  that  all  questions  of  organization  of  the 
two  services,  their  physical  location  and  the  relation  of  the  reference 
work  to  other  ends  than  the  drafting  of  bills,  as,  for  instance, 
supplying  to  legislators  and  others  material  for  the  discussion  of 
pending  or  possible  legislation,  should  be  decided  with  this  funda- 
mental principle  in  mind.  Where,  as  in  New  York,  the  reference 
service  is  not  used  by  the  drafting  department,  comparatively  little 
use  of  the  reference  service  is  made  by  members  of  the  legislature. 
Again,  if  the  drafting  service  makes  no  use  of  the  reference  service, 
the  drafting  service  is  necessarily  confined  to  minor  matters  of 
form. 


574   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

"It  is,  of  course,  essential  that  the  member,  administrative  officer, 
committee,  or  commission,  employing  the  drafting  service  shall  be 
the  final  judge  of  the  policy  to  be  expressed  in  legislative  form. 
Anyone  entited  to  use  the  service  should  be  entitled  to  it  without 
regard  to  the  effect  of  the  bill  which  he  desires  to  have  drawn. 
It  is,  however,  not  only  proper  but  vital  if  the  drafting  service  is  to 
do  more  than  correct  obv  ious  clerical  and  formal  errors,  for  those  in 
charge  of  the  work  to  be  able,  through  their  access  to  the  reference 
material,  to  indicate,  if  desired,  to  the  sponsors  of  the  legislation  the 
statutes  of  other  states  or  countries  dealing  with  the  same  subject, 
or  direct  their  attention  to  any  other  material  collected  by  the  refer- 
ence service.  Theoretically,  the  member  of  a  legislature  desiring 
assistance  in  the  preparation  of  bills.if  there  is  no  cooperation  between 
the  reference  and  the  drafting  service,  can  go  first  to  the  reference 
service  for  material  and  then  to  the  drafting  service.  Practically, 
however,  in  the  great  majority  of  cases,  the  member  seeks  the  aid 
not  of  the  reference  but  of  the  drafting  service.  That  service  should 
be  in  a  position  to  place  the  member  in  possession  of  all  pertinent 
matter  in  relation  to  the  subject.  Furthermore,  the  draftsman 
himself  should  be  in  a  position  to  ask  the  person,  commission,  or 
committee  intelligent  questions  as  to  the  details  of  the  measure 
desired.  This  he  cannot  do  unless  he  himself  has  some  familiarity 
with  the  subject-matter.  Where  the  draftsman  is  not  in  a  position 
to  refer  the  person  or  persons  desiring  the.  legislation  to  material 
bearing  on  the  subject,  and  where  he  is  not  in  a  position  to  ask  intelli- 
gent questions  as  to  details,  his  assistance  is  necessarily  confined 
to  minor  questions  of  form  and,  consequently,  the  effectiveness 
of  drafting  service  is  reduced  to  a  minimum.  The  valuable  results 
obtained  in  Wisconsin  are  due  to  a  combination  of  causes,  not  the 
least  of  which  is  the  personality  and  ability  of  Dr.  Charles  McCart  hy, 
the  well-known  head  of  the  service.  Another  contributory  cause, 
however,  is  the  fact  that  that  service  has  gone  beyond  mere  form, 
without  any  attempt  to  control  matters  of  policy,  and  this  would 
have  been  impossible  if  the  reference  work  had  not  been  organized 
so  as  to  be  contributory  to  the  drafting  service. 

"Your  committee  also  believes  that  another  essential  requisite 
is  that  both  services  shall  be  so  organized  as  to  secure  permanency  of 
tenure.  To  be  of  real  value  the  service  must  be  used  and  this  cannot 
be  unless  there  is  confidence  both  in  the  competency  and  the  im- 
partiality of  the  personnel  of  the  service.  Under  the  most  favorable 
conditions  such  confidence  is  a  matter  of  slow  growth.  There  is  a 
great  difference  in  the  value  of  the  service  in  different  states,  where 


§6]       THE  CHANCES  OF  IMPROVEMENT      575 

either  a  reference  or  a  drafting  service  or  both  have  been  organized. 
There  is  also  even  more  difference  in  the  use  which  is  made  of  the 
services  established.  We  are  glad  to  report  that  the  reappointment  of 
directors  and  chief  assistants,  regardless  of  party  considerations,  is 
almost  universal.  It  is  to  this  fact,  as  well  as  to  the  inherent  necessity 
for  both  branches  of  this  service,  in  view  of  existing  conditions,  that 
the  growing  confidence  in  the  work  of  the  respective  organization 
in  the  several  states  where  the  service  exists  may  be  traced." 

Clearly,  an  experiment  that  has  so  much  promise  in  it 
deserves  every  encouragement,  and  no  effort  should  be 
spared  to  direct  the  movement  into  scientific  lines. 

4:  CODIFICATION  OF  STANDING  CLAUSES.  The  value 
of  standardizing  constantly  recurring  terms  and  provi- 
sions, which  enter  into  or  are  subsidiary  to  the  main  pro- 
visions of  statutes,  is  beyond  doubt.  Such  standardization 
economizes  legislative  work,  helps  to  avoid  duplication 
and  inconsistency,  and  makes  for  more  perfect  equality 
in  the  administration  of  the  laws.  If  effected  by  separate 
statutes,  it  ensures  a  degree  of  care  in  the  consideration 
of  technical  detail  which  is  otherwise  hardly  possible. 
For  subsidiary  clauses  forming  part  of  statutes  dealing 
with  contentious  policies  are  often  regarded  as  mere 
technicalities  and  escape  proper  scrutiny.  As  separate 
acts  their  preparation  is  likely  to  be  committed  to 
lawyers  specially  familiar  with  or  interested  in  the  par- 
ticular subject,  and  they  will  receive  the  benefit  of  their 
knowledge  and  experience. 

We  have  this  standardization  in  our  codes  of  procedure 
which  control  the  criminal  and  civil  enforcement  of 
statutes  from  the  point  where  the  aid  of  the  courts  is 
invoked ;  we  have  it  in  the  provisions  of  general  city  acts 
which  govern  the  operation  of  municipal  ordinances, 
since  the  creation  of  new  administrative  powers  and 
remedies  is  not  as  a  rule  within  the  scope  of  delegated 
authority;  we  have  it  in  interpretation  acts,  in  acts  re- 
lating to  the  exercise  of  eminent  domain,  in  acts  relating 


576   FREUND:   LEGISLATIVE  TECHNIC  [CH.  XIII 

to  public  officers,  official  bonds,  civil  service  acts,  and 
perhaps  others.  The  practice  is  thus  obviously  not  a  new 
one,  but  it  is  capable  of  much  more  extensive  application. 

The  Report  of  the  American  Bar  Association  Committee, 
above  referred  to,  submitted  a  list  of  topics  the  standard- 
ization of  which  was  thought  desirable,  if  practicable 
and  suggested  the  preparation  of  a  drafting  manual  oi 
instructions  and  model  clauses.  The  Bar  Association 
authorized  the  Committee  to  proceed  with  the  work, 
and  the  Reports  of  1914-16  brought  some  installments 
of  such  a  manual.  There  was  thus  drafted  an  act 
providing  the  procedure  for  the  adoption  of  statutes 
or  ordinances  submitted  to  popular  vote  in  municipali- 
ties. The  enactment  of  such  a  statute  would  make  it 
possible  to  provide  very  simply  in  any  adoptive  act, 
that  the  act  shall  not  take  effect  in  any  city  until  adopted 
by  popular  vote  therein.  Clearly  the  existence  of  such 
a  statute  could  not  be  otherwise  than  beneficial.  Desir- 
able legislation  has  been  defeated  repeatedly  by  defective 
submission  clauses. 

The  result  of  a  series  of  such  "clauses  acts"  would  be 
the  codification  of  an  important  section  of  administra- 
tive law.  It  would  give  occasion  to  consider  systemati- 
cally certain  phases  of  legislation  upon  which  neither 
lawyers  nor  legislators  appear  to  have  settled  convictions. 
The  discussion  of  penalty  clauses  in  the  Report  of  1915 
will  serve  as  an  illustration  of  this;  no  similar  discussion 
of  this  ever-recurring  subject  can  be  found  anywhere  in 
our  entire  legal  literature.  In  our  present  legislative  prac- 
tice the  matter  is  left  to  the  discretion  or  whim  of  the 
draftsman  and  unless  he  offers  some  extreme  or  unusual 
clause,  his  propositions  will  arouse  only  the  slightest 
interest. 

Should  the  Committee  of  the  American  Bar  Associa- 
tion succeed  in  completing  the  outlined  manual  or  a  sub- 


§6]       THE  CHANCES  OF  IMPROVEMENT       577 

stantial  portion  thereof,  the  endorsement  of  the  Associa- 
tion would  add  considerable  weight  to  whatever  intrinsic 
merit  the  work  might  possess.  Care  would  have  to  be 
taken,  however,  not  to  misrepresent  the  meaning  of  such 
endorsement.  For  in  the  nature  of  things  it  is  impossible 
that  a  large  body  can  properly  scrutinize  such  work, 
and  it  is  compelled  to  take  much  of  it  on  faith  and  credit. 
No  legislative  measure,  however,  can  safely  dispense 
with  searching  and  even  unfriendly  criticism. 

There  is  one  body  preeminently  fitted  to  give  this 
criticism:  the  National  Conference  of  Commissioners  on 
Uniform  State  Laws.  Its  endorsement  of  an  act  is  nearly 
always  the  result  of  protracted  discussion  extending  over 
a  number  of  annual  sessions,  and  the  value  of  the  endorse- 
ment is  proportionately  high.  In  such  a  body  the  ques- 
tion would  of  course  arise  whether  uniformity  in  standing 
clauses  is  possible.  The  impression  may  exist  that  local 
peculiarities  enter  largely  into  the  subsidiary  phases  of 
legislation.  Careful  examination  and  still  more  a  prac- 
tical attempt  at  unification  will  probably  show  this  im- 
pression to  be  unfounded. 

Clauses  acts  operate  by  incorporation  into  other  stat- 
utes which  tacitly  or  expressly  refer  to  them.  Their 
mere  enactment  gives  them  no  mandatory  character; 
that  comes  only  from  voluntary  acceptance  by  the  legis- 
lature in  connection  with  subsequent  legislation.  The 
legislature  may  at  any  time  override  them  and  insert 
different  provisions  in  a  particular  act.  This  may  result 
even  from  habit,  and  if  possible  such  abrogation  should 
be  avoided  by  construction.  However,  in  view  of  this 
precarious  status,  a  general  subsidiary  act  would  have 
to  win  favor  by  its  own  merits.  All  the  more  readily 
should  it  be  given  a  chance  to  prove  its  merits,  and  its 
non -mandatory  character  should  be  an  argument  in 
favor  of  its  adoption. 


578   FREUND:   LEGISLATIVE  TECHNIC 


§  7.  Jurisprudence  as  a  Constructive  Factor:  Scientific 
Work.  There  are  principles  of  legislation  too  varying 
in  their  operation  to  be  standardized  by  codification; 
that  is  true  of  the  correlation  of  provisions,  of  the  con- 
servation of  interests,  of  the  protection  of  vested  rights, 
of  adequate  differentiation,  of  the  drafting  principles 
that  serve  to  make  substantive  clauses  available  with  the 
least  friction  and  ambiguity.  These  principles  can  be 
formulated  as  rules  only  to  a  limited  extent  if  at  all; 
in  the  main  their  application  depends  upon  training  and 
experience,  and  their  statement  can  be  undertaken  only 
in  the  form  of  scientific  exposition. 

What  is  the  outlook  for  scientific  work  of  this  kind? 
When  we  consider  the  amount  of  trained  and  systema- 
tized thought  devoted  to  legal  problems,  the  proportion 
of  it  that  goes  to  constructive  principles  of  legislation  is 
small.  I  refer  to  legal,  and  not  to  social,  economic,  or 
political  principles  of  legislation;  for  the  latter  do  not 
belong  to  jurisprudence,  but  to  the  social  sciences  which 
devote  a  perfectly  adequate  proportion  of  their  labors  to 
questions  of  legislation.  Why  this  difference  between 
the  law  and  the  social  sciences?  Because  the  former 
has  to  satisfy  a  professional  demand  while  the  latter  do 
not,  or  only  to  a  very  slight  degree.  Practically  all  legal 
writing  is  adapted  to  the  needs  of  practitioners,  and  the 
elaborate  apparatus  of  making  legal  sources  accessible 
is  entirely  subservient  to  that  purpose.  It  is  a  matter  of 
a  market  and  of  supply  and  demand.  The  influence 
extends  to  the  law  schools.  Being  organized  for  the 
training  of  practitioners  they  do  not  concern  themselves 
with  problems  analogous  to  those  which  are  dealt  with  in 
social  science  classrooms.  That  which  is  not  actually  or 
potentially  an  appropriate  subject  for  judicial  or  forensic 
discussion,  has  no  place  in  legal  instruction.  The  problem 
of  the  most  effective  and  frictionless  distribution  of 


§7]  SCIENTIFIC  WORK  579 

legislative  powers  between  nation,  state,  and  locality 
is  thus  treated  as  not  belonging  to  constitutional  law 
but  to  political  science.  The  problem  being  at  least  as 
much  political  as  legal  this  practical  division  may  be 
justified.  The  most  equitable  method  of  dealing  with 
vested  rights,  the  practical  bases  of  classification,  the 
subjects  most  appropriate  for  delegation  of  legislative 
power,  however,  are  not  political,  but  strictly  legislative 
problems  and  can  be  adequately  handled  only  by  a 
legally  trained  mind;  yet  since  they  extend  beyond  the 
province  of  judicial  cognizance,  they  are  not  considered 
as  part  of  constitutional  law,  with  the  result  that  they 
are  treated  nowhere. 

This  condition  is  not  altogether  peculiar  to  this 
country.  The  professional  point  of  view  has  dominated 
law  teaching  since  the  days  when  the  Roman  jurists 
established  their  schools,  except  perhaps  during  the  period 
wrhen  the  law  of  nature  had  an  honored  place  in  the  uni- 
versities; it  dominates  the  teaching  of  law  in  Germany 
to-day.  The  situation  in  Germany  is,  however,  different 
in  two  respects:  in  the  first  place,  in  America,  law  is 
taught  now  almost  exclusively  on  the  basis  of  cases,  a 
method  superior  to  the  German  system  as  a  training  for 
the  future  practitioner,  but  as  unfavorable  as  possible 
from  the  legislative  point  of  view ;  for  the  ideals  of  case- 
law  will  tend  to  be  those  of  the  system  in  which  judge- 
made  law  had  its  highest  development,  and  can  hardly 
be  expected  to  rise  above  them;  and  the  case  method 
will  foster  the  common-law  attitude  toward  legislation, 
looking  upon  it  as  an  inferior  product  of  the  non-legal 
mind  to  be  tolerated  and  minimized  in  its  effects.  On 
the  other  hand,  the  entire  law  of  Germany,  civil,  criminal, 
and  procedural,  has  been  codified  within  the  last  gen- 
eration or  two ;  in  view  of  this  it  is  impossible  in  teaching 
it  to  ignore  the  dynamic  or  genetic  side  of  the  law,  and, 


580   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

in  comparing  code  provisions  with  the  common  law  doc- 
trines which  they  superseded,  the  legislative  point  of 
view  necessarily  asserts  itself.  As  far  as  public  legisla- 
tion is  concerned,  the  German  law  curricula  include  a 
course  (called  Administrative  Law)  reviewing  the  entire 
body  of  statutory  law,  —  a  field  which  we  ignore. 

In  the  second  place,  in  Germany  neglect  in  the  law 
school  does  not  mean  total  neglect,  for  there  is  a  demand 
for  constant  thought  on  principles  of  legislation  in  the 
government  departments  which  are  charged  with  the 
working  out  of  legislative  projects.  The  officials  to  whom 
this  work  is  delegated  are  jurists  as  thoroughly  trained 
and  of  as  high  standing  as  the  teachers  in  the  universities; 
they  constituted  the  majority  of  the  civil  code  commis- 
sioners, and  the  "Motives"  of  the  first  draft  are  a 
lasting  monument  to  the  high  scientific  quality  of 
their  work.  The  preparation  of  the  code  afforded  the 
opportunity  for  a  systematic  statement  of  the  entire 
body  of  principles  of  private  law  legislation.  System- 
atic exposition  is  the  fruit  of  university  teaching,  as 
Blackstone's  Commentaries  demonstrate.  But  while 
without  such  exposition  we  can  perhaps  hardly  speak 
of  an  established  science,  it  is  quite  possible  that  a 
strong  and  long  sustained  official  tradition  may  firmly 
and  quite  adequately  support  certain  principles,  and  this 
is  fully  borne  out  by  a  study  of  English,  French,  and 
German  legislation. 

We  find  such  traditions  in  our  judiciary,  but  not  in 
connection  with  the  preparation  of  statutes,  and  this 
substitute  for  a  science  of  legislation  therefore  fails  in 
America.  Nor  is  it  likely  that  the  drafting  bureaus 
now  being  organized  will  very  soon  gain  sufficient 
strength  to  supply  the  defect,  whatever  we  may  expect 
of  them  if  they  are  allowed  to  work  under  favorable 
conditions. 


§7]  SCIENTIFIC  WORK  581 

In  view  of  these  conditions  we  must  necessarily  look 
to  American  law  schools  for  contributions  to  the  develop- 
ment of  the  legislative  or  constructive  side  of  jurispru- 
dence. Effective  work  in  this  direction  can  hardly  be 
expected  without  the  organization  of  special  courses 
dealing  with  that  aspect  of  the  law;  for  in  teaching,  the 
judicial  and  the  legislative  point  of  view  cannot  be  com- 
bined to  advantage,  and  the  treatment  from  the  latter 
point  of  view  will  inevitably  be  subordinated  with  the 
result  that  no  systematic  work  will  be  produced;  the 
present  condition  of  constitutional  law,  where  the  con- 
structive point  of  view  would  naturally  tend  to  assert 
itself  with  the  greatest  relative  force,  proves  this  incom- 
patibility. 

The  technical  difficulties  of  courses  in  legislation  from 
the  point  of  view  of  instruction  must  not  be  under- 
estimated, and  this  is  not  the  place  to  discuss  them 
fully;  but  unless  they  can  be  overcome,  the  scientific 
treatment  of  jurisprudence  must  remain  one-sided 
and  defective,  and  some  of  the  most  important  and 
interesting  problems  of  legislation  will  continue  to  be 
dealt  with  in  slipshod  and  haphazard  ways,  because 
it  is  no  one's  business  to  give  them  systematic 
consideration. 

§  8.  Source  Material.  The  materials  for  the  study  of 
principles  of  legislation  are  not  as  simple  as  those  for 
the  study  of  the  common  law. 

The  statutes  which  are  the  primary  source  of  the 
history  of  legislation,  are  unindexed  except  for  each 
volume  of  session  laws,  which  makes  the  tracing  of  devel- 
opments laborious;  especially  because  the  phases  of 
legislation  which  are  of  particular  scientific  interest  are 
often  merely  incidental  to  the  main  topics  which  alone 
appear  in  such  indices  as  exist;  no  index  would  thus 
give  a  clue  whether  a  prohibition  act  contained  saving 


582   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

clauses  with  regard  to  vested  rights  or  compensation 
provisions.  An  exhaustive  study  of  such  a  topic  as 
powers  to  grant  or  revoke  licenses  or  of  penal  clauses 
would  thus  be  practically  impossible.  And  even  if  it 
were  possible  to  collate  the  entire  statutory  material, 
it  would  hardly  be  worth  the  labor  expended,  for  a  bare 
provision  without  any  clue  to  it  is  not  enlightening. 
We  know  how  statutes  are  made  to-day,  and  the  method 
has  not  been  different  at  any  time  in  the  history  of  Amer- 
ican legislation :  an  interesting  or  exceptional  provision  as 
likely  as  not  represents  nothing  but  the  casual  thought 
of  the  draftsman,  and  provisions  of  common  occurrence 
may  rest  merely  on  habit  and  precedent.  The  signifi- 
cance of  a  statutory  practice  depends  upon  one  of  two  fac- 
tors, namely,  that  it  has  either  been  the  subject  of  thought 
and  discussion,  or  that  it  has  been  tested  by  practical 
application ;  but  in  most  cases  there  is  no  record  informa- 
tion on  either  of  these  points.  The  most  complete  collec- 
tion of  statutory  material  may  therefore  be  dreary  and  life- 
less, and  relatively  barren  of  valuable  data.  For  practical 
purposes,  therefore,  it  must  as  a  rule  suffice  to  pick  out 
some  typical  state  and  period  in  connection  with  some 
field  of  legislation  that  has  stirred  public  interest,  such 
as  liquor,  railroads,  or  elections,  although  even  with  this 
restriction  we  shall  often  remain  without  any  clue  as 
to  the  significance  of  provisions.  For  recent  periods  a 
good  deal  has  been  done  by  various  agencies  in  bringing 
together  the  entire  statutory  material  on  certain  topics; 
on  railroad  legislation  by  the  Interstate  Commerce  Com- 
mission, on  electrical  legislation  by  the  American  Tele- 
graph and  Telephone  Company,  on  tax  laws  by  the 
Commissioner  on  Corporations,  on  road  laws  and  pure 
food  laws  by  the  Department  of  Agriculture,  etc.;  but 
the  pictures  presented  by  these  collections  are  purely 
static,  and  since  the  dates  of  statutes  are  not  given 


§8]  SOURCE  MATERIAL  583 

nothing  can  be  learned  as  to  development  of  laws  even 
by  comparison.  The  most  instructive  phase  of  legisla- 
tion is  sometimes  its  growth  by  amendments,  but  nothing 
is  more  difficult  to  trace.  Altogether  therefore  the  pri- 
mary source  material  for  a  study  of  principles  of  legis- 
lation is  in  a  singularly  inaccessible  and  unilluminating 
condition. 

The  secondary  legislative  material  —  debates,  reports, 
documents  —  is  ample  for  Congress  and  poor  for  most 
of  the  states.  Congressional  debates  sometimes  throw 
a  valuable  light  on  the  legal  aspects  of  legislation, 
although  —  as  should  be  expected  of  speeches  in  open 
sessions  —  other  aspects  greatly  predominate.  Commit- 
tee reports  likewise  concern  themselves  rarely  with  tech" 
nical  phases  of  bills,  and  discussions  of  constitutional 
questions  invariably  take  the  form  of  regular  lawyers' 
briefs  digesting  court  decisions,  without  presenting  inde- 
pendent views  of  constitutional  principles,  —  another 
illustration  of  the  absolute  domination  of  the  judicial 
point  of  view. 

In  the  states  there  is  practically  nothing  published  in 
regular  series  corresponding  to  Congressional  Debates 
or  Documents,  but  merely  scattered  papers  and  reports, 
which  are  now  being  indexed  (at  least  so  far  as  they 
contain  economic  material)  for  the  several  states  by  the 
Carnegie  Institution.  Committees  do  not  as  a  rule  sub- 
mit printed  reports,  and  arguments  presented  to  them  by 
interested  organizations  are  not  preserved  in  an  accessi- 
ble form.  There  is  a  growing  amount  of  pamphlet  litera- 
ture issued  by  private  and  semi-public  organizations 
such  as  the  National  Civic  Federation,  the  Association 
for  Labor  Legislation,  and  others,  of  which  an  account  is 
given  from  time  to  time  by  a  Public  Affairs  Information 
Service,  and  much  of  which  is  available  for  tracing  the 
history  of  legislation. 


584   FREUND:   LEGISLATIVE  TECHNIC  [Cn.XIII 

Administrative  reports  sometimes  contain  valuable 
information  concerning  the  working  of  statutes  and 
needed  changes,  more  commonly  they  give  merely  statis- 
tics, and  comment  is  perfunctory  or  tainted  by  official 
complacency.  Of  greater  interest  are  the  proceedings  of 
national  conferences  of  various  classes  of  officials  (factory 
inspectors,  tax  commissioners,  etc.)  so  far  as  they  are 
published  and  preserved,  which  is  not  always  the  case. 
The  administration  of  laws  of  economic  and  social 
interest  is  also  frequently  made  the  subject  of  comment 
in  the  proceedings  of  scientific  associations,  in  journals 
and  treatises,  and  particularly  the  material  for  the  study 
of  the  administration  and  enforcement  of  labor  legisla- 
tion has  become  abundant,  and  much  of  legal  interest 
can  be  gleaned  from  these  publications.  The  report  made 
under  the  auspices  of  a  Committee  of  Fifty  upon  the 
legislative  aspects  of  the  liquor  problem  (Wines  and 
Koren,  Boston,  1898)  is  a  source  of  information,  of  which 
we  have  too  few  examples.  On  the  whole,  the  privately 
collected  material  is  more  valuable  than  the  official  reports. 

In  contrast  to  the  United  States,  the  secondary  legis- 
lative material  of  the  European  States  is  of  very  great 
value  for  the  study  of  principles  of  legislation..  Not  too 
much  must  be  expected  of  parliamentary  debates,  since 
speeches  in  open  sessions  are  mainly  political;  in  Ger- 
many particularly  they  are  spoken  "through  the  window," 
and  are  juristically  of  hardly  any  value.  Of  the  English 
debates  those  of  the  House  of  Lords  yield  much  more 
than  those  of  the  House  of  Commons ;  for  the  House  of 
Lords  is  full  of  great  experts,  and  in  the  House  of 
Commons  the  real  debate  on  measures  of  technical  diffi- 
culty takes  place  in  Committee  and  remains  unreported. 
The  French  debates  seem  —  at  least  in  the  Senate,  — 
of  a  high  order,  and  give  a  better  insight  into  French 
public  law  than  many  a  treatise. 


§8]  SOURCE  MATERIAL  585 

The  English  Parliamentary  documents  known  as 
Blue  Books  have  long  been  recognized  as  an  invaluable 
source  of  economic  and  social  history,  and  a  great  deal 
can  also  be  gathered  concerning  administration  and 
enforcement  of'  laws.  In  view  of  the  similarity  of  com- 
mon law  foundation  this  material  is  also  instructive  to 
American  students,  although  for  the  study  of  constitu- 
tional and  administrative  law  it  has  hardly  been  utilized. 
Of  non-official  publications  the  Justice  of  the  Peace, 
a  weekly  journal  for  the  use  of  English  magistrates, 
contains  perhaps  more  of  value  to  the  student  of  legis- 
lation than  any  other,  for  it  is  the  only  publication 
dealing  primarily  with  public  legislation,  in  which  the 
legal  point  of  view  distinctly  predominates.  It  does  not, 
however,  touch  statutes  that  are  not  locally  administered. 

The  printed  matter  published  in  Germany  by  or  for  the 
various  legislative  bodies  is  on  the  whole  similar  to  that 
contained  in  the  Blue  Books;  and  the  main  stress  here 
as  there  lies  on  political,  social,  and  economic  and  not 
on  legal  questions.  Important  legislation  is  usually 
preceded  by  preliminary  "memorials"  (Denkschriften, 
Motive)  prepared  by  officials  of  the  ministries;  these 
are  often  printed,  though  not  always  listed  in  the  book 
trade  and  hence  are  sometimes  not  readily  accessible 
After  a  statute  has  been  passed,  it  is  likely  to  be  made  the 
subject  of  an  elaborate  commentary,  in  which  all  pre- 
paratory material  is  digested;  indeed  the  official  who 
had  the  main  share  in  preparing  the  law  often  appears 
as  the  author  of  such  a  commentary.  In  this  way  the 
process  by  which  final  results  have  been  reached  is  often 
laid  bare,  and  it  is  possible  to  trace  the  underlying 
principles  of  legislation.  The  subsequent  operation  and 
enforcement  of  statutes  can  then  be  studied  in  adminis- 
trative reports,  some  of  which,  like  the  factory  inspec- 
tors' reports,  enjoy  a  high  authority.  Even  from  the 


586   FREUND:   LEGISLATIVE  TECHNIC  [CH.XIII 

German  material  we  can    derive  valuable  lessons  for 
American  legislative  problems. 

The  law  reports  as  legislative  material.  If  we  are 
poor  in  sources  of  information  which  in  European 
countries  are  abundant,  we  surpass  them  in  the  volume 
of  reported  adjudications.  The  law  reports  could  prob- 
ably be  made  to  yield  a  great  deal  of  valuable  informa- 
tion and  material  bearing  on  constructive  principles  of 
legislation.  They  are  not  indexed  or  digested  for  that 
purpose;  but  Revised  Statutes  not  uncommonly  con- 
tain references  to  the  cases  in  which  each  particular 
section  is  discussed  or  cited,  and  on  that  basis  a  tolerably 
complete  view  of  the  judicial  treatment  of  statutes  may 
be  obtained.  This  is  not  merely  valuable  for  purposes 
of  interpretation,  but  often  gives  first-hand  information 
concerning  the  history  of  a  statute,  and  explains  subse- 
quent amendments.  That  a  statute  becomes  the 
subject-matter  of  litigation  regularly  indicates  some  diffi- 
culty encountered  in  its  application,  and  may  suggest 
methods  or  principles  of  legislation  whereby  that  diffi- 
culty might  have  been  avoided.  From  this  point  of  view 
cases  could  perhaps  be  selected  and  worked  up  to  as 
much  advantage  as  they  are  now  for  the  study  of  common 
law  doctrines. 


INDEX 


[The  numbers  refer  to  the  pages] 


Adickes  — 

views  of,  231. 

Administrative  commissions,  570. 
Administrative  law,  580  — 

codification  of,  465,  479. 
"Allgemeines  Landrecht," 

see  Civil  Code,  Prussian. 
Alvarez,  Alejandro,  429. 
American  Bar  Association,  572. 
American  legislation  — 

executive  participation  in,  562. 
American  legislative  procedure  — 

defects  of,  563. 

American    Telegraph    and    Tele- 
phone Company  — 

collection  of  legislative  mater- 
ial by,  582. 
Analogy,  208. 

caution  in  use  of,  398. 
Analytical  jurists,  207. 
Appellate     Court    of     Commerce, 

Nuremberg,  70. 
Appellate  courts,  66. 
Association  for  Labor  Legislation, 

collection  of  legislative  mater- 
ial by,  583. 
Austin,  205,  211. 
Austrian  Civil  Code,  section  7,  74. 

Baudry-Lacantinerie,  209. 
Bentham  — 

on  judge-made  law,  203. 

on  natural  law,  211. 

on  interpretation,  223. 
Bertrand,  489. 
Bicameral  system  — 

in  America  and  Europe  com- 
pared, 564. 

Bills  of  rights,  221,  222. 
Birrell  — 

on  statute  law,  243. 
Bismarck,  not  thinking  juridically. 

366. 


Blackstone,    205,    218,    264,    265, 

266,  268,  269,  270,  271. 
Bracton,  218,  275. 
Brandeis,  225. 
"Biirgerliches  Gesetzbuch"  - 

see  Civil  Code,  German. 
Bryce  — 

on  the  Roman  praetor,  248. 
Billow  — 

on  judicial  lawmaking,  73. 
Bureaucratic  state  — 

Ehrlich  on,  49. 

Cambaceres  — 

drafts  of  code  by,  523. 
Canon  law,  and   English  custom, 

262-4. 

"Carolina,"  168. 
Case  system  — 

unfavorable  to  legislation,  579. 
"Causa,"  379. 

of  a  gambling  loan,  397. 
rescission  for  lack  of,  413. 
Civil  Code  — • 

Austrian,  254,  529. 
Chilean,  470. 
French,  486,  487,  528. 
article  5  of,  209. 
commentators  on,  257. 
compared  with  other  codes, 

534. 
compared  with  German  and 

Swiss,  551. 

Court  of  Cassation  and,  538. 
drafts  by  Cambaceres,  523. 
definitions  in,  531. 
drafts  by  Jacqueminot,  523, 

524. 

draft  of  Year  VIII,  525. 
effect  of  on  juristic  thought, 

251. 

influence    of     Montesquieu 
on,  520. 


588 


INDEX 


[The  numbers  refer  to  the  pages] 


Civil  Code — continued. 

legislative  history  of,  517. 

preliminary  drafts,  522. 

report  by  Portalis,  525. 

revision  of,  515. 

royal  ordinances  and,  518. 

social  conditions  at  time  of, 
431. 

style  of,  530. 

technic  of,  516. 

weak  points  of,  537. 
German,  of  1896:  255,  472. 

appreciation  of,  553. 

burden  of  proof  in,  542. 

characteristics  of,  499. 

controversies  regarding,  87. 

definitions  in,  541. 

drafting  of,  491-3. 

effects     of      upon      juristic 
thought,  255-6. 

limitations  of,  485. 

precision  of  language,  543. 

reforms  of,  482-5. 

solidarity,  483. 

technic  of,  471,  539. 

terminology  of,  471. 

underlying     principles     of, 

471-2. 

Prussian,  of  1794:  529,  540. 
Spanish,  468,  470. 

drafting  of,  491. 

revision  of,  470. 
Swiss,  68,  539. 

appreciation  of,  552. 

difference  as  compared  with 
German,  546,  549. 

first  draft  of,  544. 

message  of  1904,  546. 

report  of  Huber  on,  544. 

technic  of,  547. 
Tunisian,  555. 
Civil  law  — 

changes  in,  432. 
Code,  German  — 

controversies  regarding,  87. 
Code  Napoleon  — 

see  Civil  Code,  French. 
Code,  Swiss,  68. 

Codes,   compared  with   "lawyers' 
law,"  60. 


Codification,  61,  464,  513. 

effect  of  in  France,  251. 

effect  of  in  Germany,  256. 

governing  ideasof,  480-82,486. 

by  institution,  477. 

principles  of,  rejected,  479. 

principles,  underlying,  of,  464, 
466-70,  473,  478,  486. 

revision  of,  489. 
Codification  of    standing   clauses, 

575. 
Codified  law,  251. 

official  commentary  of,  468. 

readjustment  of,  437,  467. 

stationary  character  of,  251-4. 
Coke,  218. 
Commissioner  on  Corporations  — 

collection  of  tax  laws  by,  582. 
Common  law  — 

English,  265. 

application  of,  ,269. 
theories  on  origin  of,   265, 
270,  275-6. 

German,  255. 
Comparative  law,  436,  438,  452. 

art  of,  453,  455-6. 

a  common,  453,  457. 

Latin  congress  on,  495. 

method  of,  457. 

object  of,  452. 

science  of,  454,  456. 
Concepts  — 

nature  of,  340. 

twilight  zone  of,  342. 
Conservatism  — 

limits  of  legal,  367. 

logic  and  legal,  365. 
Constituent  Powers  — 

separation  of  474—6. 
Construction,  legal,  359,  366. 
Contracts  — 

rescission  of,  91. 

Roman  categories  of,  23. 

theory  of,  26. 
Court  of  Cassation,  69,  74,  111. 

develops  Civil  Code,  538. 
Courts  — 

production  of  law,  279. 
Cromwell,  203. 
"Culpa,"  405. 
Custom,  261-8. 


INDEX 


589 


[The  numbers  refer  to  the  pages] 


Custom  —  continued. 

Anglo-American,  263. 
Continental  rules  of,  50 
contrasted     with     legislation, 

281,  282. 

distinction  of  law  and,  373. 
fiction    of    English    doctrine, 

270,  273-7. 
Roman  and  canonical,   262-3, 

277. 

in  Germany,  270,  471. 
Customary  law,  260-68. 

Anglo-American     system    of, 

263. 

canon  law  and,  261. 
a  common,  255. 
conscious  policy  of,  260. 
and  judicial  decisions,  271. 
Justinian  law  and,  261. 

Dahn,  270. 
Dareste,  452. 
Definitions  — 

avoidance  of,  404. 
Demogue,  209. 
Department  of  Agriculture  — 

collection  of  food  laws  by,  582. 
"Deutsches  Privatrecht,"  255. 
"Dommage  moral,"  112. 
Donellus  — 

method  of  interpretation  by, 

155. 
Drafting  — 

method  of,  489-95. 

Ehrlich  — 

views  of  criticized,  234. 
Electric  wires  — 

law  of,  in  Austria,  411. 
Empirical  method  of  Anglo-Amer- 
ican law,  214. 
Employers'    liability,    in    Austria, 

409. 
English  Blue  Books  — 

as  sources  of  social  history, 585. 
English   Private    Bill  Legislation, 

566. 
Equity  — 

Aristotle  on,  151. 

compared  to  foreign  systems, 
253,  258-9. 


Equity  —  continued. 

English  system  of,  258. 

nature  of,  178. 

Schmolder  on  nature  of,  127. 
Esmein,  209. 
Evidence  — 

Ehrlich  on  law  of,  83. 

Facts  — 

questions  of,  334. 
Fast  driving  — 

in  Vienna,  348. 
Fiction  — 

legal,  270,  271. 
Flach,  438,  439,  458. 
Formalism,  97. 
Fourier,  482. 
Frederick  the  Great  — 

code  of,  211,  227. 
Free  decision  — 

defined  by  Geny,  4. 
French  Civil  Code,  article  5,  209; 

defect  of,  211. 
Fuchs,  Ernest  — 

Bozi  on,  141. 

criticizes  Imperial   Court  de- 
cisions, 110. 

Diiringer  on,  138. 

Hellwigon,  141. 

Vierhaus  on,  136. 

writings  of,  92,  106,  107. 

Geny,  262,  269,  272,  281. 

German  Civil  Code,  212. 

German  Imperial  Court  of  Leipzig, 

70. 

criticisms  of,  94. 
lauded, 121. 

German    "memorials"    of    legisla- 
tion, 585. 

Gide,  452. 

Glossators  — 

method  of  interpretation  by, 
155. 

"Gnaeus  Flavius,"  176. 

Good  faith  — 

doctrine  of,  25. 

Gray,  226. 

Hanseatic  Supreme  Court,  70. 


590 


INDEX 


[The  numbers  refer  to  the  pages] 


Hech  — 

on  sociological  method,  142. 
Heusler,  205. 
Historical  method,  179. 
Historical  school,  Geny  on,  7,  211, 

217. 

History  of  institutions,  438-9. 
History  of  law,  436-7. 

and  comparative  law,  458-9. 
Huber,  E.  — 

author  of  Swiss  Code,  539. 

report  by,  on  first  draft,  544-8. 
Human  being,  what  is,  343. 

Ilbert,  Sir  Courtenay,  561. 
"India  rubber"  provisions,  405. 
Industrial  accident  — 

case  under  a  statute,  115. 
Informers  — 

disrepute  of,  377. 
Institutions  — 

changes  in  449. 

interdependence  of,  460. 

methods  of  reconstruction  of, 
422-6. 

transformation  of  legal,  56. 
Intention  of  legislator  — 

Kohler  on,  188,  195. 

Interest  — 

superior  social,  43 

equilibrium  of,  35. 
International  Law,  462. 

Ehrlich  on,  55. 
Interpretation  — 

French,  252-4,  447-8. 

function  of,  448. 

historical  method  of,  364. 

its  rules  natural,   not    legal, 
307. 

legislative  intent  in,  469,  488. 

method  of,  449-50. 

objective  guides  to,  433,  451. 

Pound  on,  220,  223. 

under  German  Civil  Code,  472 

in  Roman  law,  149. 

table  of  kinds  of,  311. 
Interstate     Commerce      Commis- 
sion— 

collection   of    legislative    ma- 
terial by,  582. 


Jacqueminot  — 

draft  of  code,  by,  523,  524. 
James  I,  227. 
Jhering,  452. 

on  law  as  means  to  an  end,  13. 
Josserand,  on  "objective  liability," 

40. 
Judge  — 

duty  of,  88. 

function  of  in  England,  266-9, 
273-4. 

function      of      described      by 
Geny,  3. 

function  of  in  Germany,  472. 

function  of  in  France,  T71-2, 
447. 

legislative  powers  of,  474. 

personality  of,  65,  74. 
Judgment,  nature  of  a,  128. 
Judicial  decisions,  251. 

Blackstone  on,  265-6. 

and  custom,  258,  268-9. 

in  English  system,  257,  275. 

and  French  legislation,  271. 

and  jurisprudence,  463. 

Roman,  253,  257. 

and  text  writers,  253. 

three  steps  in,  208. 
Judiciary  — 

Sohm  on  a  learned,,  185. 
Juridical  thinking  — 

and  discovery  of  facts,  333. 

elasticity  of,  302. 

nature  of,  295. 
Jurisprudence  — 

as   a   constructive    factor    in 
legislation,  578. 

as  ideal,  461. 

and  judicial  decisions,  463. 

and  international  law,  462. 

and  legislation,  46.3. 

basis  of,  460. 

constructive  side  of,  581. 

does  not  include  social  sciences, 
578. 

earliest  of  social  sciences,  289. 

a  formal  science,  297. 

object  of,  460,  462-4. 

relation  to  other  social  sciences, 
292,  330. 

of  conceptions,  214. 


INDEX 


591 


[The  numbers  refer  to  the  pages] 


Juristentag,  225. 
Juristic  methods,  214. 

Kantorowicz,  206,  225. 
Kohler,  224,  452. 

Laboulaye,  452. 

Lambert,  Edouard,  251, 453, 455-6. 

Laurent,  209. 

Law — 

a  social  science,  437. 

and  sociology,  101. 

as  rule  of  decision,  5?. 

as  rule  of  decision  and  rule  of 
life,  80. 

its  dynamic  side  in  law  school 
teaching,  579. 

of  nature,  67. 

of    nature,    modern    attitude 
towards,  176. 

written,  255. 

unwritten,  271. 
Law  reports  — 

as  legislative  materials,  586. 
"Lawyers'  law,"  54. 

compared  with  statutes,  59. 
Lay  courts  — 

working  of,  127. 
Legal  science  — 

tasks  of,  79,  82,  84. 
Legis  actiones,  64. 
Legislation,  260. 

early  forms  of  58. 

executive  initiative  in,  560. 

foreign    and    American    con- 
trasted, 560. 

Portalis  on  science  of,  526. 

source  materials  of,  581. 
Legislative  commissions,  569. 
Legislative  drafting  — 

scientific  method  in,  558. 
Legislative  drafting  bureaus,  573. 
"Legislative  novation,"  505. 
Legislative  policy,  260,  262,  284. 

and  custom,  282. 

interpretation  of,  272. 

and  jurisprudence,  463. 
Legislative  power  — 

of  judges,  474. 

of  social  groups,  477. 
Legislative  practice,  559. 


Legislative  procedure  — 

improvement  of,  568. 
Legislative  technic  — 

prominence  of  political  inter- 
ests in,  565. 
Legislator  — • 

individuality  of,  509. 
Liberty,  184. 
Logic  — 

the   older   and    recent    forms 
contrasted,  338. 

Maine,  Sir  Henry,  270,   271,  272, 

273,  274,  275,  452. 
Mar  bury  v.  Madison,  204. 
Maxims  — 

contradiction  of  legal,  309. 
Menger,  481. 
Miller,  Mr.  Justice,  214. 
Mitteis — • 

on  sociological  method,  142. 
Modernism,  106. 
Montesquieu  — 

influence  on  legislative  style, 

520. 
Muller  v.  Oregon,  225. 

National  Civic  Federation  — 

collection  of  legislative  mater- 
ial by,  583. 

National     Conference     of     Com- 
missioners on  Uniform  State 
Laws,  577. 

Natural  law,  461. 

Natural  science  and  law,  460. 
Italian  school  of,  460,  461. 

Negligence,  405. 

"Objective  liability,"  4. 
Obligatio  naturalis,  52. 
Ordinances  — 

French  Royal,  form  of,  518. 
"Pandektenrecht,"  255. 
Parliaments,  French  — 

legislative  powers  of,  475. 
Philosophy  of  law,  460,  461. 
Payment,  what  is,  343. 
Pollock  and  Maitland,  275,  276. 
Portalis  — 

report  of  Civil  Code  by,  525. 
Positive  law,  study  of,  441. 


592 


INDEX 


[The  numbers  refer  to  the  pages] 


Pound  — 

on  courts  and  legislation,  202. 
Precedents  — 

the     rule     of     following,     in 
England,  237. 

rule  criticized,  239,  249. 
Private  bill  procedure,  566. 
Private  law  — 

study  of,  433,  435. 
Public   Affairs    Information    Ser- 
vice— 

on  legislative  materials,  583. 
Puchta,  270. 

Prescriptive  constitution,  221. 
Public  policy,  43. 
Puritan  ideal  of  justice,  228. 

Reason  — 

in  English  case-law,  273. 
"Reception"  of  Roman  law,  76. 
Replica  compensationis,  114. 
Richtiges  Recht, — 

of  Stammler,  71. 
Rights  — 

misuse  of,  38,  483,  484. 

in  rem,  23. 

Roguin,  467,  468,  469,  490. 
Roman  law  and  custom,  262. 

in  Germany,  255. 
Rossi,  489. 
Rules  of  court  — 

adoption  of  in  England,  235. 
Riimelin,  Gustav  — 

on  justice,  89. 
Riimelin,  Max  — 

on  interpreting  statutes,  99. 
Runde  — 

on   "nature  of   things   them- 
selves," 12. 

Saleilles,  Raymond,  209,  447,  456, 

472  — 

on  objective  liability,  41. 
Santillana,  Dr.  — 

author  of  Tunisian  codes,  555. 
Savigny,  213,  270,  452. 
Schuster,  211. 
Separation  of  powers,  204. 
vServitudes,  81. 
Sigwart  — 

observations  on  logic,  341. 


Simple  promise,  as  basis  of  obliga- 
tion, 29. 
Social  conditions,  and  custom,  283. 

effect  on  codification,  486, 487. 

and  French  Civil  Code,  431. 

and  German  Civil  Code,  485. 
Social  groups  — 

legislative  power  of,  477,  488. 
Socialism  and  recodification,  481. 
Socialization  of  law  — 

Geny  on,  550. 
Solidarity  and  recodification,  482, 

488. 
Spurious  interpretation,  210,  221, 

223. 
Stabel,  Minister  of  Justice  — 

on  judicial  methods,  105. 
Stammler — 

on  primitive  courts,  72. 
Standardized      legislative      provi- 
sions, 575. 
Statutes — 

casuistic,  401. 

compared      with      "lawyers' 
law,"  59. 

elements  of,  508. 

form  of,  511. 

modern  style  of  French,  519. 

phraseology  of,  512. 

predominant  form  of  law,  50. 

rules  for  drafting,   by  Geny, 

555. 
Statute  law,  Birrellon.  243 

inadequacy  of,  61. 

relation  of  to  body  of  law,  215 
Stephen,  269,  270.  271,  272. 
Stobbe,  270. 
Study  of  law,  430-64. 

of  comparative  law,  452. 

defects  in,  433. 

distribution  of,  435. 

Flach,  438-40. 

fundamental  subjects  in,  436- 
8. 

general  introduction  to,  443. 

in  Germany,  294. 

of  legal  history,  437. 

of  positive  law,  441. 

reconstructing    civil    institu- 
tions, 442. 

reforms  in,  433. 


INDEX 


593 


[The  numbers  refer  to  the  pages] 

Subsumption  —  Usury  — 

analysis  of,  338.  as  fraud,  347. 

Swiss  Code  of  Obligations,  482. 


Technic  — 

conscious,  in  bill  drafting,  535. 

fundamental,  503. 

Geny  on  legal,  9. 

legal",  63. 

legislative,  elements  of,  510. 

legislative,  505. 

external,  506. 

internal,  507. 

substantial,  507. 

varieties  of  legal,  501. 
Terminology  — 

of  German  Civil  Code,  471. 

official,  468. 
Text  writers  — 

French,  253-4. 

English,  258. 


Value  judgments,  372. 
Vandereycken,  223. 
Vareilles-Sommieres  — 

on  superior  social  interest,  43. 

Weapon  — 

definition  of,  348. 
Will  — 

autonomy  of,  21,  484. 
Wundt  — 

reforms  in  science  of  logic,  339. 


Zitelmann,  208  — 

views  of,  discussed,  173. 


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